Hand v Australian Casualty and Life Limited

[2004] NSWSC 252

CITATION:	Hand v Australian Casualty & Life Limited [2004] NSWSC 252
HEARING DATE(S):	30/10/03, 31/10/03, 5/12/03
JUDGMENT DATE:	2 April 2004
JUDGMENT OF:	Burchett AJ at 1
DECISION:	Action dismissed.
CATCHWORDS:	DISABILITY INSURANCE - claims of total disability and alternatively partial disability - consideration of medical issues - claims failed on the facts.
LEGISLATION CITED:	Limitations Act 1969, s 14(1)(a)
PARTIES :	Craig Ashley Hand (Plaintiff) Australian Casualty & Life Limited (Defendant)
FILE NUMBER(S):	SC 5141/99
COUNSEL:	In person (Plaintiff) R. Horsley (Defendant)
SOLICITORS:	In person (Plaintiff) Cutler Hughes and Harris (Defendant)

- 29 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

Burchett AJ

2 April 2004

5141/99 Craig Ashley Hand v Australian Casualty & Life Limited

JUDGMENT

1 His Honour: The plaintiff sues the defendant claiming to be entitled to certain benefits under a policy of insurance relating to employees, including the plaintiff, of Lakegarden Pty Limited. Among the events insured against is “injury”, that is to say, as defined in the policy, “bodily injury of the Insured Employee caused by an accident occurring while this Policy is in force as to the Insured Employee and resulting directly and independently of all other causes in loss covered by this policy”, involving “Total Disability”, that is to say, as defined by the policy, “the continuous inability of the Insured Employee by reason of injury or sickness:

(a) during the first two years of a period of disability to perform each and every duty of his occupation; and

(b) beyond the first two years of such period of disability to perform any gainful occupation for which he is reasonably suited by education, training or experience

and in either case the Insured Employee is not engaged in any occupation for wage or profit”. As is revealed by the terms of the definition of “Total Disability”, the policy is also concerned with the event of “sickness”, but this is not important for present purposes because benefits are only payable on that footing for a maximum period of two years and no dispute about that period has arisen. An alternative which is of present importance is that of “Partial Disability”, that is to say, as defined by the policy, “following a period of Total Disability for which a benefit has been payable for at least thirty consecutive days, the Insured Employee returns to work in a gainful occupation, but due to Injury or Sickness which directly caused such Total Disability, is unable to perform all the duties of that occupation and, as a result, is earning income at a rate less than 75% of Pre-Disability Earnings”. The expression “Pre-Disability Earnings” is defined as meaning “the average monthly earnings during the 12 month period immediately prior to Total Disability”. By a provision under the heading of “BENEFITS”, it is specified:

“When, immediately following a period for which a Total Disability Benefit has been payable, the Insured Employee suffers Partial Disability, the Company will pay periodically a benefit…”

2 The plaintiff’s claim is that on 1 May 1991 he suffered injury in a motor vehicle accident, with the result that he sustained total disability, or, alternatively, partial disability, within the meaning of the policy. The defendant company in fact paid benefits to the plaintiff, on the footing of total disability, for a period of two years from the end of the month in which the injury was suffered, but on 3 May 1993 it advised him as follows:

“We understand…that you are unable to return to your pre-disability occupation as an insurance agent, but that you are fit to return to work on a full time basis in alternative employment.
At the time of joining this group scheme, you had been in your current occupation for five months, and, continued to work for a further three months, making a total of eight months in this particular form of employment. Our Assessor’s report indicates that prior to October, 1989, your occupational duties, since leaving school in 1982, were shop assistant, storeman and office worker. You have demonstrated you are capable of performing this work when you returned to work in May, 1992 until November, 1992, when your employer ceased trading.
This policy provides coverage for your own occupation only for the first two years of claim. Accordingly, we advise that this period expires on the 30th May, 1993 and no benefits will be paid beyond that date.”

Approximately one year later, on 1 June 1994, Mr Hand’s solicitors wrote in response that, apart from brief periods, he had “not been able to return to any form of work because of his debilitating headache”, and that he claimed to be “at the least partially disabled” within the meaning of the policy.

3 It appears that, between 15 May 1992 and some time in November 1992, Mr Hand did work as a shop assistant although he alleges that he had difficulty in doing so. Also, between November 1993 and March 1994 he did some work as a casual truck driver, and between April 1994 and July 1994 he did some work as a casual builder’s labourer. About Christmas 1994, he worked for two weeks as a labourer.

4 Mr Hand was born on 18 September 1965. He left school, at the age of eighteen, one year before he was to sit for the higher school certificate, and worked for some years as a shop assistant or storeman in a menswear shop. After an overseas holiday, he became a subagent selling AMP policies of insurance on a commission basis in the employ of Lakegarden Pty Limited trading as North Coast Wealth Planners. That was on 27 October 1989, when he was aged 24. However, he did not work continuously from then until the date of the motor accident; following a previous injury, sustained on 30 July 1990, when he hurt his knee, he was off work for some nine months.

5 A matter of a few weeks before the accident of 1 May 1991, Mr Hand married his wife Pauline, a marriage which ended in separation on 12 June 2000, subsequent divorce, and at least 38 Family Court and Local Court cases involving husband and wife, their property, and the custody of their two children.

6 Apart from the work to which I have referred, the plaintiff has not engaged in paid employment in all the years since 1991. For a brief period, he did some unpaid part time work as a counsellor in a branch of a religious charity, and he claims to have worked as a “house husband”, caring for the two children of his marriage, who are now aged six and eight, prior to his wife obtaining custody, and doing the housework. At one point in his evidence, he said: “In lieu of part-time work, I am raising my children which is of great benefit to my rehabilitation. I have thoroughly enjoyed it.” There was some disputed evidence about his also doing maintenance and building work in the home.

7 The accident out of which the plaintiff’s claim arises has been variously described in the documents, each of which reflects his account, as a head-on collision between a car driven by the plaintiff and a truck coming the other way on a one lane bridge, as a side swiping collision with a truck, and as a “near head-on collision”. It is clear that physical injuries to the plaintiff at the time, so far as could be observed, were minimal. He did not lose consciousness. The observable injuries, as reported by Dr Maxwell, a neurologist who saw him on 19 July 1991, were “lacerations to his right arm and face”. However, he complained immediately of severe headaches, and has continued to do so ever since. His headaches were in the “left periorbital and frontal region and in the neck region”. In the early period, he received “relief from his neck pain” with physiotherapy, again as reported by Dr Maxwell. Dr Maxwell’s detailed neurological examination “was normal” and he had “a full range of neck movement”. At that stage, he had “recovered well from his neck pain”. A brain CT scan was reported as normal, as was, later, a brain MRI scan. A cervical X-ray on 21 October 1991 detected nothing relevant, but on 30 November 1995 and later, cervical scanning revealed two disc prolapses, to which I shall refer, the precise significance of which has to be determined in the context of the evidence.

8 As late as 11 June 1993, Dr Maxwell still found “no limitation of neck movement”, although there was “some pain in the cervical/occipital/sub-occipital region”. His headaches were considered to be “mostly muscle contraction in aetiology”. The doctor had earlier made it clear he regarded the headaches as “a mild persistent disability” (estimated at 5%), which “would be expected to improve in time”.

9 Dr Maxwell, to whom the plaintiff was referred by his general practitioner in Lismore, Dr Delaney, seems to have been the first specialist in the area, highly relevant to the complaints made, of neurology to have the opportunity to assess the situation following the accident. He also had the advantage that he had seen the plaintiff before for some unrelated condition. Another specialist neurologist who saw the plaintiff early on was Dr J Colebatch, who saw him at the Neurology Clinic of the Prince of Wales Hospital on referral from Dr Delaney on 28 October 1991. Dr Colebatch’s report includes the following:

“He presents with constant left sided headaches dating from a motor vehicle accident on 1st May, this year. He tells me he had had no serious headache prior to then. Apparently he was the driver of a car which was hit on the side by a truck and was clearly very shaken by his experience. Although apparently there were no external signs or symptoms of a head injury, he was a little confused for one or two months thereafter and he dates his now constant headache from immediately after getting out of the car. This has remained focused around the left orbit and also on the left temple and is present most days. If not present, it will be brought on by minor exertion. It is not associated with nausea or photophobia. He finds that his concentration is poor and this too could cause a headache, but he has been able to go to work about once a week. I understand there is the possibility of litigation pending from his accident.
Previous investigations, including a CT scan, have been normal. He has had no other neurological symptoms. …
On examination, neck movement was full and painless and there was no local tenderness of the scalp or neck. Cranial nerve examination was normal, as was examination of the upper and lower limbs. …
…His pattern seems to be one of tension-vascular headache.
I have asked him to return in three months for review.”

There is no evidence that the plaintiff did return for review by Dr Colebatch.

10 Also at this early stage, the plaintiff was referred to a psychologist, a Mr Stewart Hase, who saw him on 22 October 1991 at the request of his solicitor, and thereafter on a number of occasions until 26 March 1992. Mr Hase reported that the plaintiff told him “he did not suffer from headaches before that time [i.e. of the accident on 1 May 1991] and that he had been living an active and happy life with few problems”.

11 Mr Hase wrote:

“While it is difficult to be certain, it appears reasonable to assume that prior to the accident Craig was living a normal, well adjusted life. However, any obsessional tendencies in his personality prior to the accident would explain his preoccupation with and difficulty in overcoming his symptoms and his slow response to treatment. It is also important to consider that reaction to injury and response to treatment is often complicated by the issue of compensation. I believe that Craig’s condition…was affected by both these factors.”

12 Although Dr Colebatch records Mr Hand as having told him he “had had no serious headache” prior to the accident and Mr Hase records him as having said “he did not suffer from headaches” before the accident, the fact is he was seen by an ear nose and throat surgeon, Dr Raikundalia, only a fortnight after the accident, on 15 May 1991, for a condition of allergic rhinitis with “some clouding in some sinuses” observable in x-rays, when he gave Dr Raikundalia a history of “facial pains and headaches since last two years”.

13 Notwithstanding the dearth of specialist support for such a view, Mr Hand’s general practitioner, Dr Delaney, has consistently reported over the years that he suffers “intractable headaches and severe cervical pain”. His most comprehensive report is one dated 14 September 2000 which recapitulates that Mr Hand “was involved in a motor vehicle accident on 1st May 1991. He was the driver of a vehicle that was side swiped by a passing truck on a single lane bridge.” The report continues:

“After the motor vehicle accident Craig Hand complained of a number of symptoms. These included severe chronic headaches; severe cervical pain, irritability, confusion, dizziness and depression.”

14 Despite the periods of some months of work to which I have referred, Dr Delaney reports that Mr Hand “has been unable to work since 1991”. He refers to cervical spine injury involving posterior disc prolapses at C4/5 and C5/6 first detected by a CT scan on 30 November 1995, and he “assess[es] the permanent impairment to his cervical spine to be 10%”. He also refers to “chronic pain syndrome” and “depression”. But in an earlier report of 24 August 2000, Dr Delaney attributed Mr Hand’s “anxiety and depression” to “his recent marital separation”, prior to which the doctor thought “he was managing home duties and his parenting responsibilities with a major role in childcare.” The doctor’s views about fitness for work seem also to have undergone some change over the years, since on 25 June 1996 he stated the plaintiff was “unfit for work at present and has been for most [emphasis added] of the time since his accident on the 1/5/91”.

15 On 28 February 1992, Mr Hand saw a chiropractor, Mr James Duffy, giving him a dramatic description of his accident - “a head on collision with a truck”. He complained then of neck pain, headaches, low back pain and right shoulder pain. Mr Duffy diagnosed various areas of muscle spasm. Relevantly to the neck, he diagnosed “[f]lexion – extension - flexion sprain/strain injury to the cervical spine” and “[m]yospasm to the posterior cervical muscles”. He also diagnosed headaches “associated with diagnosis” of muscle spasm. Additional areas of muscle spasm were “[r]ight upper trapezius muscle spasm” and “[b]i-lateral sterno-cleidomastoid muscle spasm” and “[m]yospasm of the lumbar erector spinae muscles”. Mr Duffy gave chiropractic treatment on ten occasions in 1992, and also on 13 April and 16 April 1993. He thought the prognosis was “poor to guarded”.

16 On 24 October 1993, Mr Hand presented himself at Lismore Base Hospital complaining he had “put neck out when leant forward”. The note of presenting problems refers to “whiplash car accident 1-5-91”. He was assessed as a “non urgent” patient for triage categorisation and the medical assessment noted in the hospital records includes: “mild neck pain past few days suddenly worse on leaning forward this morning”. Subsequently, Mr Hand expressed disappointment and surprise that he had not been regarded at the hospital as being in a serious condition – “he couldn’t understand why they had let him go home”, as he told one his therapists.

17 Mr Hand was seen for psychological assessment by a consulting clinical psychologist, Mr Allan Andreasen, at the Lismore Psychology Clinic on 10 August 1993, and again on 2 March 1994. Mr Andreasen was one of two psychologists whose reports, tendered in evidence, were supplemented by oral evidence. In his case, that evidence was given by telephone from Lismore because of his serious ill health. Mr Andreasen appears to have become involved in the case at the request of the plaintiff’s solicitor and he consulted with Dr Delaney. He also had the benefit of a report from Mr Hase, several chiropractors including Mr Duffy, Dr Colebatch and Dr Maxwell. He reported that the plaintiff:

“presented in a most odd and obsessed fashion and the giving of the history was disorganised and markedly lacking in insight. There was a considerable mismatch between the reasonable presentation and the seriousness of the complaints and this was particularly notable in terms of claims that he was confused and had a headache without showing any signs of either. His presentation was characterised by complaint and obsession rather than depression or difficulty.”

Mr Andreasen considered there was “a somatoform pain disorder…characterised by preoccupation with pain for more than six months with the complaints of pain and resulting social and occupational impairments being grossly in excess of what would be expected from the physical findings such as they are. There are also indications of considerable delusion and thought disorder and of depression.” He found no indications of neuropsychological impairment and found “no indications in the testing of malingering as such”. He found indication of “a schizoid breakdown in [the plaintiff’s] previously rigid and immature personality”.

18 As for the prognosis, in September 1993 Mr Andreasen wrote:

“It is very difficult to estimate the prognosis in this case. Considerable clarity would be introduced into the situation were he to attend a pain clinic and subsequently present himself to the Commonwealth Rehabilitation Service for rehabilitation assessment. At present this man considers that he is permanently impaired and he looks forward to compensation providing sufficient investment funds for him to live on a rental income for the rest of his life.”

In fact, although at least one other doctor made a similar suggestion, there was no evidence Mr Hand was ever admitted to a pain clinic.

19 Seen again by Mr Andreasen on 2 March 1994, Mr Hand “said he was still playing cricket and hadn’t blacked out on the field although he had had a lot of headaches and had had to be taken off the ground a number of times”. He also said “he still had dizzy spells, although he hadn’t passed out and these had only been through exertion such as at sport when he was playing cricket or running”. At the same time, he said “he couldn’t do difficult housework like vacuuming”. On an earlier occasion, in 1993, he had said “his wife had learned to adapt to him not being able to do anything and not doing anything.” Mr Andreasen specifically asked about whether he had been to a pain clinic as had been suggested in August 1993, to which Mr Hand “said he hadn’t been able to remember who told him about the pain clinic and he hadn’t been up to it and he couldn’t remember how far he had got with the arrangements or whether someone was going to make an appointment, he just couldn’t remember.” He was given a written reference to pain clinics in Brisbane and told they “would help him to get on with his life and to manage his pain and other difficulties and that he should take this referral to his GP who would then refer him to the pain clinic”. Mr Andreasen concluded:

“This man, who is not sure of his age, reports continuing neck pain, headaches, inability to do little things, forgetfulness and a great need for others to massage him and generally look after him. This man remains in my opinion, primarily psychiatrically disturbed. It is very likely that there have been long term problems with personality development and adjustment although to the best of my knowledge these had not been apparent in the gross manner that they are at present until his involvement in the motor vehicle [accident] in 1991. I should conclude therefore as I did in the last report that this man, as a result of this accident, has suffered a schizoid breakdown in his previously rigid and immature personality. His complaints and inabilities are complex and contradictory. They basically result from muscular tension and from him defining himself as an injured and sick person who cannot cope with personal responsibility or with being well. The medico legal context is a significant factor in this man’s presentation.

I should recommend as in the last report that this man attend a pain clinic at the Prince of Wales Hospital or Greenslopes Hospital in Brisbane. If he is accepted into such a program, this would be the best place for him to begin to take some responsibility for his own life. It may well be that he would not be accepted into such a program because of the psychiatric dimension to his presentation and the significance of the medico-legal context.”

20 On 20 June 2002, Mr Andreasen reported again, after he had been requested to comment on some thirteen photographs showing the plaintiff “engaged in various pursuits”, and after he had been shown the report of another clinical psychologist, a Ms Farrelly, who had submitted the plaintiff to certain psychological tests. Earlier, on 18 September 2001, Mr Andreasen had commented on the problem of “interpretation of a bizarre presentation and a highly suspect test performance and a marked mismatch between his presentation and the seriousness of his claimed injuries”. He had acknowledged that there was not “any great difference between Ms Farrelly’s psychological diagnosis” and his own. He had concluded:

“I don’t think there is anything in my findings or indeed of [ sic ] those of Ms Farrelly that would point to any clear disability as a result of this man’s involvement in the motor vehicle accident in question. …When I saw this man he was delusional and preoccupied and he seemed to have become this way after the accident but that is not the same as saying that the accident in any way caused it. Whether the link in his own mind between the accident and his multiple and bizarre symptoms and complaints is real (delusional) or malingered I do not know.”

But Mr Andreasen remarked: “I should say however that this man’s score at only percentile 5 on the Warrington Recognition Memory test is quite suggestive of malingering and of course this test performance could rightly be taken to so characterize the other questionable test performances.” Upon being shown the photographs in April 2002, Mr Andreasen commented that they “appeared to depict Mr Hand in various pursuits involving physical recreation, he looks cheerful and healthy and of course all this is hardly consistent with his claims of disability and nor are they consistent with any delusional or psychiatric status.” He added:

“Craig Hand has always said that he sometimes has these so-called symptoms and sometimes doesn’t and I can only reiterate that the symptoms had never made any sense to me in relation to the injuries he claims to have received in the motor vehicle accident in question. These photographs may well further support the conclusion that this man is malingering and I would not in any way disagree with that conclusion. After consideration of the results of Jill Farrelly’s assessment I was less inclined to see this man as having any psychiatric diagnosis at all, even of delusional thinking, and these photographs would tend to confirm that.”

21 When Mr Andreasen gave evidence orally, he was asked to assume that a number of the complaints made by Mr Hand could be explained by some specific organic deficit, and on that assumption whether his opinion would be any different. He replied:

“That may well indicate that Mr Hand had, or does have, headaches, but my conclusion was also based on things like taking vitamin C tablets to suicide, but having a dry mouth and being unable to swallow; being able to play cricket and have sex, and yet not take out the garbage; and a lot of other completely contradictory things, as well as complaints of poor concentration, side by side with a very good test performance with new learning and memory and concentration. So, certainly, they might indicate some basis for headaches, and I hope I haven’t said there were no headaches. All I have said is that the whole presentation was contradictory, and the test results confirmed that.”

Later in his evidence he said:

“There may or may not be some basis for some pain, but I would stick with my conclusions that his reported symptoms are far in excess of what could be expected from almost any level of pain that he is claiming, and that there is a certain pattern of – contradictory pattern of what he can and can’t do – which is more likely to suit him, rather than reflect the extent of any kind of pain, headache or otherwise.”

22 Mr Andreasen maintained that the psychological tests were “quite suggestive of malingering”, and he also referred to “a couple of probably very telling performances on tests, where we know, from long experience, that even memory-damaged people still do reasonably well in those tests, and he did particularly poorly on them. They are the most transparent ones that most people think is the sort of memory affected by physical problems.” Pressed by Mr Hand to concede that his test performance might have been caused by “some disorder”, Mr Andreasen said:

“There’s no disorder that makes a person malinger. The headache doesn’t affect test results. In fact, there was nothing wrong with most of your test results, except in just a few instances, and they happened to be instances where malingering is very evident and, basically, your performance on those was more like a malingered performance than a genuine one, either for a person with a headache or without a headache.”

Later in his evidence, he explained:

“I mean, people come in to me every day and say that they have headaches, and everything else they say matches that, and their test results reflect the sorts of deficits that people get when their concentration is affected by headaches, and so on and so on. And his pattern didn’t hang together like that, so the conclusion is that it doesn’t make sense. There is no support. It is more likely to be a somatoform, or psychologically-based, functionally-based, discomfort and disability, and so on, rather than an organically based one.”

23 Finally, Mr Andreasen was asked to comment on the question of exacerbation of the personality disorder that he thought Mr Hand exhibited, and whether “a stressful marriage [would] have the same effect, or be another possibility [alternative to the accident]?” and he replied: “Yes, probably much more likely to.”

24 Another psychologist also gave oral evidence in the case, Ms Jillian Farrelly. She practises as a clinical psychologist in Macquarie St Sydney, and she reported on the plaintiff on 2 April 2001. She said “the most striking feature” of her consultation with Mr Hand “was his performance on one particular test called the Warrington Recognition Memory test.” On one component of this test Mr Hand scored at the fifth percentile, that is to say, he was “out-performed by 95% of a normal population and on the other component of the test … he scored at just a little bit more than the ninth percentile.” Ms Farrelly commented that “they were both very unusual scores and it is considered that this represents malingering of memory function”. She confirmed, when questioned, that they were “both appalling scores” and “equally malingering”. People only genuinely score in that range “if they have severe brain damage”, of the kind verifiable by CT scanning. She said: “The only way you can score in this way for reasons other than organic is through deliberate choice to do so.” But in other tests, Mr Hand scored in a manner inconsistent with such organic deficits. The inconsistency was something she had not often encountered, but when she had it was “[g]enerally [with] people who are feigning a picture of mental incompetence.”

25 Ms Farrelly was asked to comment on certain evidence Mr Hand had given in the Family Court in proceedings between himself and his wife, and on the photographs to which reference has been made. She said the picture given in his evidence in the Family Court was “not at all” consistent with his presentation when he saw her. And, in contrast to his account of his life given to her, the photographs appeared to show “a fairly active life”. Ms Farrelly considered the plaintiff suffered from a “paranoid personality disorder that is of long standing”, going back before the accident. She also considered he had “grossly exaggerated the degree of [his] headache”. In psychological tests, he was “displaying crazy deficits that are not genuine”. But in some tests she was able to establish that “his concentration was excellent and the memory problems he always alleged don’t exist”. Taking all these matters into account, she concluded “that he was capable of engaging in a range of occupations should he choose to do so, and they at least would include but not be limited to all the occupations he has carried out previously”.

26 The plaintiff was referred to Dr Ross Mellick, consultant neurologist, on 6 March 1993 for an insurer’s medical examination. He told Dr Mellick “that the main existing symptom dating from the time of the accident is headache”. He also complained of neck ache. Dr Mellick expressed the opinion:

“The symptoms described by Mr Hand to me today do not include any which can be properly related to pathology caused by the accident…
…
I can identify no grounds indicating Mr Hand to be incapacitated for normal function as a result of any medical or psychiatric disorder aetiologically linked with the accident. “

27 On 4 August 1993, the plaintiff was sent for an insurer’s report to Dr J W Shand, a psychiatrist. Dr Shand obtained a history that his car “was side swiped” by a vehicle coming the other way. Dr Shand made a diagnosis of “Somatization Disorder”. He thought the prognosis remained “in doubt” and that the plaintiff’s “motivation for treatment is suspect”. He commented:

“It is likely that pre-existing personality structure is playing more part than is obvious from his description.”

28 On 13 October 1994, Dr Delaney obtained from another psychiatrist, a specialist in pain management, Dr Graham Rice of Brisbane, a further report on Mr Hand. Dr Rice reported:

“At presentation he was in no distress, displayed no postural or facial expression of pain. There was no apparent memory loss, nor any evidence of Post Traumatic Stress Disorder. Of interest was his response to who would support their child, that his wife would keep working.
Overall I felt that there was a significant Jurisigenic component to the aetiology of his pain and that his attention is drawn to it by the presence of the court case at this time [presumably the third party insurance claim arising out of the motor accident].”

29 Dr Rice was another doctor who considered that the plaintiff should be assessed by a pain management clinic and offered to assist in arranging that. Again, there is no evidence that anything useful transpired.

30 The defendant obtained a report from a Dr Igor Petroff, a psychiatrist of Lismore, on 20 March 1995. Dr Petroff reported that the plaintiff had:

“a Somatiform [ sic ] Pain Disorder which is a preoccupation of pain and disability being grossly in excess of what would be expected from physical injuries.
The man’s problems cannot be assumed to have been caused in May, 1991, as prior to that he was off work for over nine months for a minor knee injury which should not have interfered with his ability to work. …
Whilst this patient is psychologically disabled, he is not so disabled as not to be able to work, at least on a part time basis. He himself claims that he is better, is able to do more and that he has worked for three separate employers since the accident. He felt that his last job as a Shop Assistant suited him fine and he would be able to carry on that work. He also said that he could cope with the duties of a Storeman that he had when he worked for City Club Apparel. He would not be able to return to his job as a Financial Planner.
Whilst he is not malingering there is a great tendency to exaggerate the disability post accident whilst minimising any problems prior to the accident in 1991. The patient is very much aware of the benefits of compensation and is preoccupied with the medico legal aspects of this case.
My strong suspicion is that this man was not coping with life prior to 1991, has used the injury to obtain the benefits of the sick role, made a brief attempt to return to work and seized on the accident in May, 1991, as a compromise solution to his problems. He suffers a vulnerable and immature personality that of course predated these more recent problems.”

31 Dr Petroff also commented that “on direct questioning it appears that he is still playing cricket and does gardening and has a social outing with his old mates over a few beers.”

32 On 31 January 1996, after settlement of the third party claim had been achieved, Dr Delaney referred the plaintiff to another neurosurgeon, Dr David Cull of Southport. Dr Cull reported on 2 February 1996 that Mr Hand “gave a history of headaches and neck pain with some radiation into the right arm” following the accident. He had had “a recent CT scan” reported upon as showing “a disc protrusion at C5-6 and C6-7 on the right”. Dr Cull suggested an MRI scan “to get a better idea of the state of these discs”. He “thought there was no doubt [Mr Hand] did have a disc protrusion but wonder[ed] how significant this [was] in terms of his particular disability”. Upon obtaining the MRI scan, Dr Cull reported that it “showed desiccation or dehydration of the C4-5 and C5-6 intervertebral disc with a slight right sided paramedian prolapse at C5-6”. The doctor commented:

“His main complaint is headaches and associated symptoms of an anxiety depression type.
I have told him I don’t think surgery would be likely to help these midline symptoms. He has very little in the way of brachialgia or nerve root compression.”

Asked for a further report by the plaintiff’s solicitors, Dr Cull reported on 29 April 1996 that he had not seen the plaintiff since 29 February when he furnished his previous report. Dr Cull elaborated the position by saying that he thought it probable the headaches, neck and right arm pain had occurred as a result of the accident; he did not think the symptoms would respond very favourably to surgical treatment; “but if he does develop more pronounced symptoms in his shoulder and arm or neurological symptoms in the arm due to a progression of the degeneration then he would be likely to obtain relief from surgical treatment. This treatment is usually a cervical discectomy via an anterior approach with or without fusion. In most cases a fusion would be undertaken.” He thought it “very unlikely that [the plaintiff’s] symptoms will resolve spontaneously or be influenced to any large extent by conservative treatment.”

33 The plaintiff was referred by Dr Delaney to Dr Leong Tan for a second neurological opinion, and he reported on 25 March 1996. He said the plaintiff was “most severely affected by the headache and to a lesser degree neck pain”. He emphasised his opinion “that it is very unlikely surgery to excise the C5/6 disc will help to ease his headache which is his main symptom. The treatment is conservative.”

34 Dr Leong Tan saw the plaintiff again about 18 December 1998, when he advised Dr Delaney:

“I have explained to him the symptom he currently suffers from is consistent with muscular ligamentous strain ‘soft tissue strain’.
…
I have also explained to him a large degree of his symptoms may not be related to the injury that he sustained.”

35 In 1999, Dr Delaney referred the plaintiff to an orthopaedic surgeon, Dr Mark Pearce of Lismore, who wrote a report dated 17 March 1999, in which he referred to Mr Hand as “a strange young man” who “apparently sustained injuries to his neck and to his right shoulder” in the motor vehicle accident. According to the account given to Dr Pearce, his “right shoulder has been painful ever since”. The arm also feels weak, and he has “pins and needles in his hands”. He “has difficulty working with his hands away from his body”. Of course, the plaintiff was not then performing any remunerative work, physical or otherwise.

36 Dr Pearce found “no evidence of significant wasting or a neurological deficit in the upper limb”. He reported that he “was unable to test the strength of his shoulder musculature because this produced increased headaches” – a statement to which the doctor added an exclamation mark. An ultrasound of his shoulder was performed and this, the doctor considered, “suggests rotator cuff tendonitis”. Dr Pearce concluded:

“I am not sure that I can explain all this young man’s arm symptoms. There is a suggestion that, in part at least, some of his symptoms are related to rotator cuff tendonitis. I shall treat him conservatively, and have started with a subacromial injection of local anaesthetic and steroid. I shall avoid surgery at all costs, because I do not feel that he is likely to be one of the group of people who would respond well to surgical intervention.”

37 The plaintiff was also referred by Dr Delaney to another orthopaedic surgeon, Dr Matthew Scott-Young of Southport. Dr Scott-Young saw the plaintiff on 15 August 2002, when he reported:

“Mr Hand’s whole life has gone wrong since his accident in 1991. Since then he has had headaches and arm pain. He seems to have right arm pain predominantly, it is non-specific in its pattern of referral, but there is a suggestion of C6 nerve root irritation. When his arm is playing up he can get left sided occipital headaches and if he touches the occipital region or his posterior neck it can trigger the headaches. He has seen a variety of doctors over the years. He still has problems in relation to his medico legal merry-go-round that he is on. He has generally enjoyed reasonable health.”

The doctor arranged for an MRI scan to be done to update the picture and arranged to see the plaintiff again “in the near future”.

38 A further cervical MRI scan was performed and is the subject of a report dated 2 September 2002. The conclusion in that report is as follows:

“1. C4-5 disc protrusion with possible impingement of the exiting right C5 and traversing right C6 nerve roots. This was not present on the previous examination of 1996.
2. C5-6 disc protrusion abutting the right C7 nerve root without definite impingement. This has minimally increased in size since the previous examination of 1996.”

The evidence does not disclose what recommendation, if any, Dr Scott-Young made following the receipt of this report, or whether any action was taken upon any such recommendation.

39 On 11 January 2001, Mr Hand was assessed by a psychiatrist, Dr Ian Hayes, who reported to the Legal Aid Commission. This was at a time when contested custody proceedings were on foot between Mr and Mrs Hand, and the report appears to have been prepared for the purposes of those proceedings. Dr Hayes indicated that on the history given to him a diagnosis had been warranted, at the time following the accident, of “a somataform [sic] disorder”. But he concluded:

“By his [i.e. Mr Hand’s] account, and by my observation today, there is no real evidence of any ongoing psychiatric ill-health. …
Depression may present with somatic symptoms, such as pain, and pain may at times be relieved by anti-depressants. It is therefore possible that Mr Hand has suffered with a somewhat atypical depression following his accident, compounded by ongoing pain and loss. However, there is nothing in his history or in my assessment that would suggest he is currently unable to adequately care for his children.”

40 It is noteworthy that Dr Hayes was told by Mr Hand he was “currently living with his two children aged five and three, and function[ed] as a house parent”. At that time, according to the history as recorded by the psychiatrist, Mr Hand “continu[ed] to be troubled with some headaches [emphasis added], but now feels that his understanding of the cause has helped him enormously”. The words “understanding of the cause” refer to Mr Hand’s understanding that his headaches were related to disc prolapses in the neck. Nevertheless, Dr Hayes considered the “discovery of real organic damage does not alter the validity of [the] diagnosis” of “a somataform [sic] disorder, i.e. markedly exaggerated response to physical injury”. Nor, on the evidence, did the reduction of the problem to “some headaches”, or the enormous help received, lead Mr Hand to seek paid employment.

41 The plaintiff places some reliance on a report of a Dr Oei dated 28 October 2003. Dr Oei, who signs himself as a “Sports & Musculoskeletal Physician”, has the standard bachelor’s degrees, and his letterhead indicates the following additional qualifications:

“Cert. Manual Medicine Grad. Dip. Phys. Med. (Musculoskeletal)

Master Medicine in Physical Medicine Dip. Acupuncture

Physical Medicine & Injury Management Consultant (Work Cover).”

In his report, which is not addressed to any referring doctor or legal practitioner, Dr Oei records that the plaintiff “occasionally plays cricket and golf”, and that “since the accident he has had constant headaches and neck pain which has prevented him from working as a Superannuation Salesman, as every time he lifted heavy things these problems came on”. The doctor’s opinion is expressed as follows:

“I believe that his MRI findings of C5-6 C6-7 disc problems is consistent with the myofascial pain syndrome as these discs will cause some irritation of the nerves which then causes neural loop irritation which then further causes muscular tightness of the involved muscles. As a result of these muscular tightness [ sic ] he then developed some trigger points which triggers pain in a distant region and in this case it is in his scalp or over the periorbital region and on the lateral side of his head. This condition can be treated with some gentle stretching exercises and cervical mobilisation and also provided he does not aggravate the problem again with doing some heavy lifting. I do believe that with time and his regular stretching his condition should abate. I am not an expert on a psychological aspect of this problem but there may be some psychological involvement as well in his case. Trigger points can often be aggravated by stress, unusual postures and by cold temperature. It is very unfortunate that he has not been assessed by any musculoskeletal physician all these years, as everyone seems to focus on Craig’s emotional/psychological condition.”

The doctor’s remark about the focus on Mr Hand’s psychological condition and the absence of any assessment “by any musculoskeletal physician” should not be allowed to pass without comment. It is quite apparent from the medical evidence the accumulation of which I have summarised that Mr Hand was seen by persons with neurological and orthopaedic expertise, and that those responsible for his care and treatment did not merely focus on his psychology. It is also noteworthy that Dr Oei’s expressed confidence that the plaintiff’s “condition should abate” is consistent with the view taken by other doctors that the disc prolapses, which no one has suggested will go away without surgery, should not be regarded as the explanation of all the symptomatology. Even if the medical evidence is taken at its highest in Mr Hand’s favour, it seems probable that any organic injury in the cervical region amounted to no more than a stimulus upon which other causes of his complaints fastened.

42 On 5 June 2002, Mr Hand swore an affidavit in Family Court proceedings then on foot between himself and his wife. In that affidavit, he dealt with the effects of the motor vehicle accident as follows:

“Whilst I am able to perform many tasks I continue to suffer from headaches and dizziness at times. These are foreseeable with a gradual onset but they effect [ sic ] my ability to work and concentrate at times. If the work is of a nature that allows me to rest then I tend to suffer less. I have recently in 2002 started five hours a week volunteer work with a charity at Ballina. This may lead to some partially paid work in the future but at present I am still dependent on a Centrelink income of 208.00 [ sic ] per week.”

43 The affidavit of 5 June 2002 refers to the houses of the parties and to the arrangements with respect to their children. It contains the following:

“Throughout the relationship I had made significant contributions to the financial assets of the relationship. I have remained at home and cared for the children for over seven years and provided for their daily care and needs. This arrangement was by agreement with the applicant who returned to work after approximately a year’s leave after the birth of each child. I often heard the applicant comment to friends and family words to the effect ‘I would not have Craig’s patience to stay home and look after the children’ and ‘I am a career person’. Since the childrens [ sic ] proceedings have commenced the applicant has stated in her interim affidavit that she was forced to go to work because I wouldn’t or couldn’t. I say that the decision for me to remain at home to care for the children was a mutual one that allowed the applicant to advance her career and for me to care for the children, an activity I could do then and continue to do now and agreed by the applicant in her first affidavit. During the time I cared for the children the applicant advanced her career and in her applications for promotions stated ‘I wish to pursue my career’. …
For each of the houses we have moved into I have had responsibility for the maintenance, repairs and improvements. In particular in regard to the current house at Ballina I completed the following work after we moved in and since separation:
Extensive concreting outside the house of paths and retaining walls

Tiling the entrance hall, lounge room, hallway and kitchen, family and dining room and toilet
Some painting inside and out
Installed security lighting and system
All landscaping
Rendering and painting of boundary walls
Construction of sideboards, tables and display cabinets to suit the matrimonial home
Fitting out of shelving
Fitting out of garage
All maintenance work
Construction of internal walls
In addition to the above I paid for the following items:
Covering of lounge
Purchase car
Holiday to New Zealand, Victoria, Whitsundays, Ayers Rock, Darwin
2 Freezers, T.V., video, camera, tools, boat, honeymoon, microwave.”

44 The plaintiff was cross-examined in the proceedings before me about the evidence he had given in the Family Court proceedings. At one stage he was asked:

“Would it be true if you said, and please listen to this which I am going to read to you:
‘Contrary to what the mother says, I performed the vast majority of the housework, washing, cleaning, ironing, cooking and supervising the children at all times, including weekends. The mother was tired from work, and understandably did not want to be involved with them initially. The only ironing I can recall the mother doing was her own work clothes’.
Would that be true?”

Mr Hand replied: “Yes”. But when he was cross-examined about the statements set out above concerning the work done in respect of the house at Ballina, he said:

“That is set out slightly incorrect. I didn’t do all the jobs in the first list. “

Asked: “Well, do you say you did extensive concreting outside the house on paths and retaining walls?” he replied: “Not completely. I thought I told the solicitor that I organised – I know the next thing it said I paid for, but I organised the above jobs. That’s what I thought it said.” Pressed: “Did you do any of the concreting?” he replied: “I helped organise the concreting”. He explained that the concrete was produced from a concrete mixer and tipped in the location where it was to be laid by wheelbarrow, and he said: “I didn’t use any wheelbarrows”. However, he did acknowledge he was one of those who worked at placing reinforcement. He said the work “took a number of months to do it, and I did it when I felt I could contribute a bit. A normal employer would expect a bit more out of me than what I did. I plodded along and I was very happy to do it.” As for other tasks, there were a number of them which he said he did not in fact do, including painting. He did do some rendering of walls himself, and tiling.

45 During the cross-examination of the plaintiff, the transcript records the following questions and answers:

“Q. But you haven’t taken every opportunity to do part-time work that has come your way, have you?
A. In lieu of part-time work I am raising my children which is of great benefit to my rehabilitation. I have thoroughly enjoyed it. It has given [my attention] to – some people look upon it as [a] part-time job or even as perhaps their full-time job.
Q. But people [who] look on raising children as their full-time job, and do that in preference to obtaining employment, can’t at the same time say that they are out of work because they are injured, can they?
A. Sorry, I am just didn’t fully take in that.
Q. People who are raising children as a full-time job in preference to obtaining employment can’t say that they are out of work because of an injury, can they?
A. Depends if they are – they have got an injury or not.
Q. But your situation is that you have chosen to look after your children in preference to doing some part-time work?
A. That’s correct.”

46 For the defendant, the photographs which have been mentioned were tendered in evidence through Mr and Mrs McKelvie, upon whose evidence I find that those photographs depicted Mr Hand at various times in the few years following the accident. Disability is certainly not apparent in them. Mrs McKelvie is a sister of the plaintiff’s former wife Pauline, and I scrutinised her evidence and that of her husband with care because that relationship is likely to have affected their objectivity. However, I concluded that both were honest witnesses endeavouring to present the truth to the court, although undoubtedly time has dimmed to some extent their recollections. They managed country properties which Mr and Mrs Hand on occasion visited, and they shared holiday time with them. Their evidence indicated that Mr Hand engaged in a number of outdoor activities, including shooting wild pigs and kangaroos, chasing small pigs, duck shooting, fishing, swimming, boating, horse riding and riding a motor bike on a farm. His shoulder did not prevent him using a .303 rifle, and he did not appear to have any difficulty using it, despite the alleged problem with shoulder musculature exhibited to Dr Pearce. He did not show discomfort or pain during these physical activities, although “at some other times occasionally he would complain of a headache”. Mrs McKelvie did observe Mr Hand “laying cement” on a large area near his home, together with two or three other people. On occasion, Mr Hand said he was going off “to play football”. Mrs McKelvie did not see him play, but she saw him leave after saying this.

47 I accept generally the evidence of Mr Andreasen and Ms Farrelly. I was particularly impressed by the careful and anxious attention Mr Andreasen quite obviously gave to the consideration of the problem raised by Mr Hand’s complaints. It follows from their evidence, as well as from many indications in other evidence, that the plaintiff’s alleged symptoms are at the least very grossly exaggerated. This conclusion is supported by evidence the plaintiff himself gave in his matrimonial proceedings, by admissions he made in cross-examination, and by the evidence of Mr and Mrs McKelvie. I have referred to all these matters in recounting the evidence.

48 It is true, as Mr Hand emphasises in his submissions, that there is evidence of some organic lesions in his cervical spine. But on the assumption they arose from the motor vehicle accident, and that one or both the discs in question has or have contributed to Mr Hand’s complaints of neck pain, it does not follow that all or any significant part of his neck pain was so caused, and it certainly does not follow that the headaches, which he has described as his “main complaint” (the “neck and the arm, both arms, are not a major problem in my life, it is just that those problems affect my headache”, he said in evidence), were wholly or to any substantial extent so caused. The overwhelming weight of the neurological, orthopaedic, psychological and psychiatric evidence is to the contrary. Having accepted the evidence of Mr Andreasen and Ms Farrelly to the effect that the plaintiff has deliberately made untrue complaints of disabilities in relation to his psychological tests, and having considered his own evidence, I conclude that a great part of his alleged pain, headache and difficulty leading to inability to perform work is simply untrue. To the extent that he may have been hampered to some degree since the accident, I do not accept that this was sufficient to prevent him from performing any of the forms of work he had previously performed. In that respect, I expressly accept the evidence of Ms Farrelly, but I would have reached the same conclusion on the whole of the evidence even had I discounted this particular opinion of hers.

49 It follows from my findings that I do not consider the plaintiff was for any relevant period continuously unable, by reason of his alleged injury, to perform any gainful occupation for which he is reasonably suited by education, training or experience. On the contrary, he has throughout the period to which his claim relates been able to perform the work of a storeman, a shop assistant, a salesman (except a salesman requiring particular educational qualifications or skills) and various driving occupations.

50 The plaintiff also put his case on the alternative basis of partial disability. Indeed, the admissions made in cross-examination, particularly that he had chosen the vocation of a house husband and child carer, and that he was well able to perform the duties required of him in that regard, plainly concede at least a partial capacity to work. In my opinion, however, at all events since the end of the period of two years following his accident, he has in fact been capable of working full time and of performing “all the duties” of occupations in the categories I have mentioned. But the definition in the policy upon which the plaintiff sues is a rather precise one. In order to be entitled to claim for partial disability, an insured employee needs to return to work in a gainful occupation following a period of total disability for which a benefit has been payable for at least thirty consecutive days, and then be in the situation that due to the injury which directly caused the total disability, he is unable to perform all the duties of that occupation and as a result is earning income at a rate less than 75% of pre-disability earnings. The requirements need only to be stated for it to be clear that the plaintiff does not fulfil them. He did not return to work in a gainful occupation in any such situation as is specified in the policy. Nor has he demonstrated an inability to perform all the duties of an occupation to which he returned. It cannot be said that he has lost earnings because of such an inability.

51 In the circumstances, it is unnecessary to pursue a number of other issues which would have arisen had the plaintiff established his case in respect of the issues I have discussed. In particular, it is unnecessary to consider a defence that he is barred by s 14(1)(a) of the Limitations Act 1969, this action not having been commenced until the 21st day of December, 1999, and it is unnecessary to consider the problem posed by the definition in the policy of “Pre-Disability Earnings”, a definition which was obviously not framed to meet a case where an insured employee was absent from work by reason of some other injury for most of the period of twelve months on which the definition turns.

52 For these reasons, the Court dismisses the plaintiff’s action. As requested by both parties during the argument at the close of the evidence, I refrain at this stage from making any order as to costs, pending the receipt of submissions in that regard.

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Last Modified: 04/05/2004