Henderson v TAC

[2011] VCC 1469

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION

SERIOUS INJURY DIVISION

Case No. CI-10-03736

GORDON HENDERSON	Plaintiff
v
TRANSPORT ACCIDENT COMMISSION	Defendant

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JUDGE:	HER HONOUR JUDGE K L BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:	16, 17 and 18 August 2011
DATE OF JUDGMENT:	2 September 2011
CASE MAY BE CITED AS:	Henderson v TAC
MEDIUM NEUTRAL CITATION:	[2011] VCC 1469

REASONS FOR JUDGMENT

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Catchwords: TRANSPORT ACCIDENT – Transport Accident Act 1986, Section 93 – serious injury – Petkovski v Galletti [1994] 1 VR 436 – impairment to the lumbar spine – impairment to the right shoulder - psychiatric impairment

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr V Morfuni SC with	Nowicki Carbone
Mr G A Worth
For the Defendant	Mr R P Gorton QC with	Wisewould Mahony
Ms M Britbart
HER HONOUR:

1 This is an application brought by Originating Motion by which the plaintiff applies for leave pursuant to s.93(4)(d) of the Transport Accident Act 1986 (“the Act”), to bring proceedings to recover damages for injuries suffered by him arising out of a transport accident which occurred on 7 January 2009 (“the said date”).

2 Section 93(6) of the Act provides:

“A court must not give leave under sub-section (4)(d) unless it is satisfied

that the injury is a serious injury.”

3 The definition of “serious injury” relied upon by the plaintiff is under s.93(17)(a) – “a serious long term impairment or loss of a body function”. The body function pursuant to (a) relied upon by the plaintiff is the lumbar spine and the right shoulder.

4          The enquiry under subparagraph (a) of the definition focuses attention, first, upon whether the injury has produced an organic impairment or loss of body function, and then by reference to the consequences of that impairment, to determine whether it is serious and long term.

5          The serious injury defined by subparagraph (a) can have its seriousness measured in part by a mental response to a physical impairment. What it will not recognise is that the mental disorder can of itself constitute or be the producer of the impairment of a body function: see Richards v Wylie (2000) 1 VR 79.

6          In forming a judgment as to whether the consequences of an injury are serious, the question to be asked is, can the injury, when judged by comparison with other cases in the range of possible impairments, be fairly described as at least “very considerable” and more than “significant” or “marked”?: see Humphries v Poljak [1992] 2 VR 129, at 140-1.

7          The application was also brought in relation to sub-paragraph (c), claiming a severe permanent behavioural or emotional disturbance.

8          The judgment of the Court of Appeal in Mobilio v Balliotis [1998] 3 VR 833 resolved the meaning of “severe”. Brooking JA held, at 846, having referred to the considerations mentioned in Turner v Love & Transport Accident Commission (1995) 21 MVR 314, that they were not sufficient to warrant departing from the conclusion at which one would, prima facie, arrive, namely that the change in language from “serious” or “severe” betokens a change in meaning. Without suggesting the use of any particular adjective to mark the distinction, his Honour said that “severe” was used in the definition as a stronger word than “serious”.

9          Winneke P, in Mobilio, agreed with Brooking JA’s reasons and further agreed with him that the word “severe”, where used in sub-paragraph (c) of sub-s.(17) of the Transport Accident Act, was a word of stronger force than the word “serious” where used in that Act: (see also Phillips JA at 858 and Charles JA at 860 to 861 to similar effect.)

10        The plaintiff relied on two affidavits and gave viva voce evidence. He was cross-examined. Medical practitioners Mr Simm. Mr de la Harpe, Associate Professor Paoletti and Dr Ahern were required for cross-examination as was psychologist Ms Georgiou. 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

11        The plaintiff is aged forty seven, having been born on 18 October 1963 in Sydney. He is a single man who has been in receipt of a disability support pension since 2008 in relation to a number of health problems first experienced in 2005.

12        The plaintiff was educated to Year 10. After leaving school, he worked as a shopfitter for two years then as a truck driver for three years. For a number of years he then worked as an assembly worker.

13        Since 1988, the plaintiff has been a fork lift driver, doing occasional work for a number of employers driving fork lifts and transporting stock.

14        In his recent affidavit, the plaintiff deposed in or about 1987, he was convicted of armed robbery and imprisoned.

15        The plaintiff last worked as a fork lift driver with K W Doggett (“Doggetts”) in about 2005. He was medically unable to continue work and underwent surgery that year for a number of conditions.

16        The plaintiff deposed he had made a substantial recovery and approximately four months prior to the said date, he returned to work at Doggetts for three weeks but he had to stop work. Once his pre-existing condition had resolved, he was going to return to work. He was involved in the transport accident just prior to doing so and has been unemployed since that date.

Pre-Existing Conditions

17        The plaintiff has a history of asthma and has been hospitalised on a number of occasions. That condition is stabilised and he uses an inhaler as required.

18        In his June 2010 affidavit (“the first affidavit”) , the plaintiff deposed in or about 1996 he was hospitalised after he sustained an injury to his back at work using a faulty forklift (“the work injury”). He explained in cross-examination that he was not in fact hospitalised and he only attended a doctor.

19        The plaintiff deposed he underwent a number of sessions of hydrotherapy and physiotherapy over a two year period which fully resolved this injury. He did not believe the work injury impacted on the injuries he sustained in the accident on the said date.

20        In his 2011 affidavit (“the second affidavit”), the plaintiff gave further details about the 1996 work injury with Feltex Carpets (“Feltex”). He recalled being off work for about two years during which time he undertook physiotherapy and hydrotherapy.

21        The plaintiff deposed that the back injury that caused him to stop work in about 1996 had substantially resolved, save for some ongoing and intermittent flare ups in about 1998, and did not prevent him from successfully returning to work at Doggetts.

22        In cross examination the plaintiff agreed that payments of compensation ceased in February 1999. He went back to work that month at Khoury Spare Parts (“Khoury”) when he was well enough but he was still under treatment for his back.

23        The plaintiff worked there for a couple of years as a delivery driver. During that time had no difficulties with his back at all, nor did he have any problems with the use of his right arm and shoulder.

24        In terms of his recovery from the 1996 work injury, the plaintiff said he did heavy amounts of hydrotherapy and physiotherapy and he got a gym ball that helped greatly. He then found a job that was not doing the same rigorous tasks. He would not have gone looking for another job (Khoury) unless he felt totally able to do the job.

25        The plaintiff was asked about his description in his recent affidavits as to his recovery from the 1996 injury having deposed in his first affidavit that he had fully recovered in 1998 and in his seconds, having deposed that it had substantially resolved, with intermittent flare ups in 1998.

26        The plaintiff returned to work in about 2001 and recalled he would still have occasional flare ups of back and leg pain, for which he took Panadeine Forte, but otherwise he coped well with his work duties from about 2001 to 2005. He could not remember any back injury interfering significantly with his work, or requiring him to take significant time off in that period.

27        The plaintiff explained that it had almost completely resolved “but he could not tell his new boss that he still had a bit of pain. “ The majority of his problems had completely resolved and he did not have significant ongoing difficulty with his back.

28 The plaintiff was asked about his affidavit sworn on 21 October 1999 in support of an application pursuant to Section 134AB of the Accident Compensation Act in relation to the 1996 injury.

29        The plaintiff agreed that in March 1999, he started working because of financial pressure. The work was very trying for his back, groin and right leg. He had some time off work but not much. On any but short trips he had to get out of the car and try and move his back. He required assistance with lifting heavy parts. He had a lumbar support in the work utility.

30        The plaintiff explained that in 1999 his back pain was intermittent; sometimes it would be all right, depending on what he was doing at work.

31        The plaintiff agreed he deposed in 1999 to then having constant pain in his lower back, right groin and testicle and right leg, extending to his ankle. The pain in his right foot felt like a hot rod. He was only walking slowly and he had problems walking up stairs or up a hill. He agreed at the time he swore the affidavit he thought his future employment prospects were very low.

32        In cross examination, the plaintiff agreed his description of his condition in 1999 was quite close to his present problems but he recovered through rigorous treatment.

33        The plaintiff “was on a feeling it was going to repair so he tried to repair it and got to the point where he could work.” When back at work, it was just on the odd occasion that he would have to lift something and he did not have pain all the time.

34        The plaintiff agreed he gave Mr King the history in 1999 of having for the previous two and a half years remained much the same with persistent right back ad right leg pain. He was able to cope with the driving, because it was mainly local.

35        In cross examination the plaintiff said that after the 1996 accident, he got back to jogging, pool playing, surf fishing, riding a couple of dirt bikes and also jet skis; but did not go back to riding go-carts. He also enjoyed walking as it was good for his back.

36        In cross examination, the plaintiff was asked about a physical assessment in January 2001 where he had a reduced ability to reach with his right hand behind his neck. The plaintiff said he vaguely remembered a slight problem for a couple of months, just lifting. It was mainly his hand and wrist. He had not had any problems with his right shoulder before the accident. He might have landed on his arm once when he was fifteen but that was all. Nothing really was a problem with his shoulder or stopped him working.

37        The plaintiff deposed that following the work injury he became involved with heroin and marijuana and was homeless for about a year in about 1999 to 2000. In about 2000 he got his heroin addiction under control with the use of Methadone and once again was able to pull his life back together.

38        In 1999/2000, the plaintiff and his partner split up. He was trying to help with her heroin rehabilitation and he did not work at all for a couple of years, he thought, until 2001.

39        The plaintiff deposed that he returned to work in about 2001 with Doggetts as a fork lift driver. In cross examination, when taken through the taxation summary, the plaintiff agreed that it was possible it may have been May 2003 that he in fact started work at Doggetts having worked for one month before with XL Express

40        In cross examination, the plaintiff disagreed the job at Doggetts was very light work. With the assistance of another worker he had to pick up boxes weighing twenty to twenty five kilograms. Sometimes he had to pack a pallet with fifty Reflex boxes.

41        The plaintiff deposed that having got his heroin under control, he felt a renewed sense of purpose and self worth. He worked at Doggetts for about four years until about 2005, when he was hospitalised for heart, kidney, liver and renal failure (“the 2005 health problems”). He was in intensive care about fourteen times over the following eighteen months to two years and he was in a coma four times.

42        The plaintiff understood these problems were as a result of a genetic blood disorder.

43        About roughly this time, the plaintiff also suffered a heart attack and was diagnosed with high blood pressure for which he continues to receive medication. He was also operated on for cataracts and treated for hepatitis C about the same time.

44        In cross examination, the plaintiff agreed these health problems caused him to be totally depressed and distressed.

45        The plaintiff was treated for depression by Dr Ahern who prescribed Serapax to help the plaintiff sleep and also to deal with anxiety and depression.

46        In addition to that medication, the plaintiff agreed he was being prescribed Panadeine Forte by Dr Ahern until 2005, most of the time, for back pain; though through the day the plaintiff was all right and was able to work. He took the tablets at night for his back and left leg problems: the groin pain had gone.

47        The plaintiff deposed that between 2005 and the said date, he had made a substantial recovery. He did not believe the 2005 health problems impacted on his transport accident injuries.

48        The plaintiff deposed by about June 2007, his kidney/liver condition was largely under control and he attempted a return to work at Doggets, which lasted about two weeks before fluid retention caused him once again to cease work.

49        By 2009, the plaintiff once again felt ready to attempt a return to work and that his liver/kidney condition was sufficiently controlled and he could perform and sustain regular employment.

50        The plaintiff deposed he believed his last out patient treatment for his 2005 health conditions was approximately two years ago. He does not believe that such conditions would now prevent him from returning to his old job as a fork lift driver for his old employer or for an alternative employer.

51        In cross examination, the plaintiff said that he was cleared by those treating him for his cardiac, kidney and liver conditions; “not quite in 2007, because they still had not got his blood pressures right.”

52        The plaintiff underwent no additional treatment for his mental condition from 2005 until the accident. He was suffering depression and anxiety more so after 2005. He did not know if he was going to be able to get back to work. He thought he just got over his cardiac, kidney and liver issues and he was ready to go back to work.

53        The last out patient attendance at the Austin for the 2005 health conditions was probably in about 2007, but he might have gone once in 2008 for a review. Those treating him for his kidney and liver problems did not want to see him.

54        The plaintiff was not told at any of the reviews at The Austin that he should not be working.

55        The plaintiff did not have a conversation with Dr Ahern about whether he should not work because of his liver and kidney condition in 2007. The plaintiff tried to go back to work for three weeks in 2007 and he got dizzy operating a forklift so he and Dr Ahern were dealing with that issue possibly.

56        During 2008, the plaintiff discussed a return to work with Dr Ahern and that they would just wait until “they got the bloods right” and then the plaintiff should be able to go back to work. The plaintiff described how at one stage his blood pressure was 240/120, but it had been under control now for a good two and a half to three years. The plaintiff last discussed his blood pressure with Dr Ahern last year and was told it was under control. He was not then told by Dr Ahern about any capacity to work or otherwise.

57        As far as the plaintiff knows, it is only his back that would stop him from working. He thought if he got passed by the Austin, he might be able to try to get back to work.

58        The plaintiff last attended the Austin last year for pneumonia which was a problem for him particularly because of his lifelong asthma.

59        The plaintiff agreed his various health problems affected his mental state and they depressed him to the point where he asked, what did he do in his last life.

60        The plaintiff deposed to a right knee injury in November 2003 which was not of particular significance and he got over it.

The Accident

61        On the said date, the plaintiff was involved in a collision when another vehicle failed to give way to his vehicle, colliding with the left side of it (“the accident”).

62        The collision caused the plaintiff to be thrown heavily against the door and window. In cross examination, he described how he smashed his arm, hitting the window. He had read somewhere that he tore a muscle off his elbow.

63        The plaintiff deposed that when he attempted to get out of his car, he felt instant pain in his back and right shoulder. The police and an ambulance were called and attended the accident scene. The plaintiff was given an inhaler and placed in a hard cervical collar. He was then taken by ambulance to The Austin Hospital (“the Austin”) for treatment.

64        At the Austin, various scans were conducted. The plaintiff was advised that the doctors observed a number of injuries including to the cervical spine, lumbar spine, right shoulder and injury to the lower left and right limbs. The plaintiff deposed he was instructed by the doctors at the Austin that the injuries were inoperable and he was discharged after a short time and he was prescribed Panadeine.

65        Once the painkillers were depleted, the plaintiff saw his general practitioner Dr Ahern on or about 27 January 2009. The plaintiff was referred for hydrotherapy and physiotherapy and prescribed Panamax.

66        In August 2009, Dr Ahern referred the plaintiff to Dr Georgiou, clinical psychologist to deal with his injury concerns and the emotional situation which had resulted from the accident. He saw her until recently approximately every two weeks in relation to treatment of depression and anxiety.

67        In 2009, the plaintiff saw a specialist, Mr de la Harpe, for his back and leg pain. He did not suggest surgery and told the plaintiff he basically had to live with his pain. Thus the plaintiff has not returned to see a specialist for further treatment.

68        The plaintiff continues to see Dr Ahern about once every three weeks. Because of his serious kidney/liver disease, Dr Ahern advised the plaintiff to stop taking Panadeine Forte and other strong painkillers for his back and right leg pain. He presently takes Panadeine, although that does little to reduce his pain.

69        Dr Ahern also prescribes Serapax to help the plaintiff sleep. This was being prescribed before the accident, however the dosage has doubled since then;

70        Recently Dr Ahern arranged for the plaintiff to undergo an MRI scan of his right shoulder and lower back.

71        The plaintiff continues to see physiotherapist Ms Nguyen for treatment approximately once very two weeks. In about October 2010, the plaintiff did a two month course of hydrotherapy and he has recently commenced a further course at Thomastown pool. Most recently, Ms Nguyen provided the plaintiff with a large rubber ball and instructed him how to do core strengthening exercises at home and also advised him to use Voltaren Rapid gel.

72        The plaintiff has continued to see Ms Georgiou every two or three weeks and last saw her a month ago. He has seen her in three bouts of five or six visits.

73        Last year, the plaintiff was admitted to the Austin with pneumonia and he started a course of pulmonary breathing treatment during 2011. He does not believe this condition or his asthma would presently impact on his capacity for work.

Pain and Restriction

74        In his first affidavit, the plaintiff deposed that since injuring his back in the accident, he had lost a significant amount of function. He had great discomfort in bending, squatting, twisting, standing and sitting. He also had been experiencing pain radiating from his back down his right side into his right leg, frequently causing him to limp. The effects of his injuries had been frustrating and the limitations prevented him from performing several of the everyday tasks he could easily do before the accident.

75        The plaintiff deposed that since suffering injury he had reduced function in his right shoulder. It clicked and ached where it was injured in the accident when he hit the window. This situation was frustrating as he was unable to lift large amounts of weights with his right arm, due to pain.

76        Since the accident, the plaintiff had been frequently depressed and frustrated. He found he was regularly upset because of the limitations his injury placed upon him, as well as the loss of quality of life. He found he was restricted socially, physically and unable to return to work.

77        Since the accident, the plaintiff had extensive difficulty walking especially on inclines, declines and along uneven surfaces. He had a particular difficulty getting up and down stairs because of his right hip and groin injuries and sometimes he required the assistance of a handrail. He tried to avoid climbing stairs where possible.

78        The plaintiff deposed that prior to the accident, he regularly attended events such as V8 Supercars and horseracing.

79        Since the accident, the plaintiff had been unable to stand or sit at a car race for a prolonged period of time. The venues have little seating and large crowds of people to compete with. The plaintiff found himself unable to cope with the stress and the thought of the crowd and the possibility of further injury. He had also become nervous and anxious around cars and did not enjoy the car racing as much as he once did.

80        In cross examination, the plaintiff confirmed that prior to 2005 he was interested in touring cars and horseracing and was a regularly attendee at various venues. He had not attended since that time. His interest returned in 2009 but he could not attend the actual events. He tried to watch them on television at the hotel.

81        The plaintiff has found it impossible to stand to watch since the accident. He intends to start going again to these venues if he gets well enough to stand and watch. He can no longer die dirt bikes.

82        The plaintiff deposed that since the accident, he had noticed a change in his mood with signs of depression, anxiety, stress and frustration which brought him down psychologically and upset him.

83        Prior to the accident, the plaintiff was a regular, happy man and was making a good recovery from his pre-existing medical conditions.

84        The plaintiff deposed that he had not been able to socialise as much as he previously did, as he could not enjoy himself as much. The pain and restriction from his injuries frustrated him. When he saw friends and family he had a short temper, as his moods had become unstable and he found himself easily tired when socialising.

85        The plaintiff deposed that prior to the accident he performed household chores without difficulty. He washed clothes, ironed, cleaned, vacuumed and mopped. Since the accident all of those tasks had been difficult.

86        Hanging washing was difficult as the plaintiff had to raise his right arm above his shoulders. Various other activities had become difficult, as his back and right shoulder did not function as well as they did prior to the accident, and all household tasks took much longer than they used to. On occasions it could take most of the week to clean the house.

87        The plaintiff deposed that since the accident he found maintaining personal hygiene very difficult, with problems using the toilet and washing himself, due to his back and right shoulder injuries. The tasks took significantly longer which was very frustrating and depressing for him.

88        Since the accident, the plaintiff found he lacked motivation and had lost libido and the desire to meet other people. Since the accident he had not had a partner and felt as though that was how he wished to stay because of how embarrassed he was due to his injuries.

89        Since injuring his back, neck and right shoulder, the plaintiff had had significant difficulty with movement and difficulty with squatting and walking. He had particular trouble getting up and down stairs because of his back. He found his day to day routine to be a cycle of standing, sitting and lying down, lasting about thirty minutes until he felt pain and he had to change position.

90        Since the accident, the plaintiff experienced pain and difficulty when attempting to carry any significant amount of weight such as the grocery shopping and he was exhausted and in heightened pain for several hours after a shopping trip.

91        Since the accident, the plaintiff had lost approximately eight to ten kilograms and as of the middle 2010, had recently started regaining small amounts of weight. His weight fluctuated, often making him feel unwell and embarrassed about his appearance.

92        Since the accident, the plaintiff had generally only been able to get about two to three hours’ sleep a night. He found it difficult to get to sleep and stay asleep due to constant pain in his back, neck and right shoulder. No sleeping position was comfortable and he often had to change positions throughout the night and was easily awoken by pain and had a difficult time resting because of it.

93        In re examination, the plaintiff said that he takes Serapax every night, because he wakes up in the middle of the night with back pain.

94        Since sustaining injury, the plaintiff had been in constant pain whilst driving as it hurt his back and neck to sit for prolonged periods and to check the mirrors and blind spots. Sitting in the car for longer than twenty minutes exacerbated his neck and back pain. The plaintiff had also lost confidence driving and lost trust in other drivers. He was extremely cautious as well as a slow driver. He also avoided driving, as medication he took, often made him feel drowsy, causing him to lose concentration and focus.

95        The plaintiff deposed he was close to returning to work shortly before the accident and had returned to work for approximately three weeks before the accident. The last job he held was with Doggetts where he was employed five days a week, working approximately thirty eight hours a week, earning about $560, or $35,000 per annum.

96        In his second affidavit, the plaintiff deposed that he continues to experience pain and discomfort in his right shoulder and, to a much lesser extent, intermittent clicking and pain in his neck.

97        Problems with prolonged sitting, walking, and standing continue and he generally experiences difficulty and increased pain with activities. The plaintiff’s lower back and right lower limb pain impact on all areas of his life.

98        As the plaintiff lives alone, he must do his own housework. He often avoids activity because of the pain in his back and right leg, so he does not vacuum or change the bed as often as he should, as both activities generally increase back pain.

99        In cross examination, the plaintiff confirmed that he does all the housework because there is no one else to do. Once or every couple of months he might vacuum. He is embarrassed by the state of his house and lack of attention to cleaning it.

100       The plaintiff has great difficulty cooking. Prolonged standing to cook a meal usually increases pain and the movements required for most housework chores generally increase leg pain, as does lifting and carrying shopping bags.

101       Self-care tasks are still difficult, with problems getting in and out of the bath or shower and difficulty getting dressed and getting onto and up from the toilet.

102       The plaintiff deposed that socially he is quite limited by his back and right leg pain. His last girlfriend left him in about 2005 when he was having problems in hospital and he now despairs of finding or sustaining a new relationship. He is getting older and often feels his injuries have robbed him of the chance to have children.

103       The plaintiff is quite isolated in his flat and he does try to get out to socialise. He was brought up in hotels and feels comfortable in them, so he goes to the local pub during the week just to get out of the flat. Whilst there, he frequently has to alter his posture between sitting and standing because his pain makes it difficult to get comfortable.

104       In cross examination, the plaintiff confirmed that since the accident he can no longer go and visit people at their houses. He now goes every day or so to the hotel. It is the only way he can be able to socialise; otherwise he would just be a “cave dweller”.

105       The plaintiff, however, agreed his social group had disappeared from 2005 onwards, but in re-examination said he was building those networks up again. He confirmed that he made further contact with old friends after 2007 on and since the accident he cannot go to visit them as regularly.

106       The plaintiff continues to experience pain and discomfort in his right shoulder, which clicks and feels weaker than the left despite him being right handed. His right shoulder is very tender. His range of movement has improved. His right shoulder symptoms are aggravated by heavy lifting, repetitive use, raising his right arm above his shoulder, and also when he reaches to the back of his head or behind his back. This interferes with housework and repetitive tasks involving his right arm, such as vacuuming, aggravate his symptoms, as does hanging out washing and he uses a clothes horse. He still has problems wiping himself after going to the toilet.

107       In cross examination, the plaintiff confirmed that his right upper limb problems are mainly with his shoulder. It hurts to sleep on and put things up in the cupboard. Movement is limited compared to the left and he can do some movements but it only creates pain.

108       The plaintiff did not think he had a full range of shoulder movement when he saw Mr Kudelka and then said he did not want to show Mr Kudelka how sore his shoulder was.

109       As a consequence of the accident, the plaintiff has experienced depression and anxiety for which he has sought counselling. He continues to experience dreams and flash backs of the accident and continues to be hyper vigilant around traffic, particularly near the accident scene. At times he has felt suicidal because of the injuries from the accident. He is frustrated, in particular, that his life was just getting back on track after the kidney and liver disease when the accident happened.

110       Since the accident, the plaintiff’s sleeping difficulties have worsened considerably. He is woken generally by pain more than once every night. Despite a doubling of the dosage of Serapax since the accident, he continues to be woken. He finds it difficult to lie on his right side. When he does wake up, he often gets up and walks around until the pain subsides long enough for him to sleep again. He is frequently exhausted during the day because of the difficulty getting to sleep and remaining asleep due to his pain.

111       Presently it is the plaintiff’s low back and right leg pain from the accident that prevents him from working in a sustained capacity. Because of it, he does not believe he would be able to cope in any sustained and consistent fashion with his former duties. Similarly, by reason of his right shoulder, he would struggle to perform work activities that require heavy lifting or use of his right arm away from his body or in an overhead position.

112       In cross examination, the plaintiff was asked about a job offer made to him at the hotel, referred to in Ms Georgiou’s notes.

113       The plaintiff spoke to her about the job offer as there was no one else he could talk to. He told her that there was no guarantee of a job – “they just say that.” He told her if he could, he would work. He did discuss whether he should go back to work or not and asked Ms Georgiou whether it was going to affect him because he “was tripping out. He was concentrating on just trying to get better.”

114       When it was put to the plaintiff that he was concerned that if he took a job it would be bad for both his case and his mental health, the plaintiff agreed but said “not so much for his case.” Ms Georgiou did not advise him either way about pursuing the job.

115       The plaintiff denied these events indicated he was capable of looking for employment now and had not done so because it might interfere with his case. He explained he wanted his case over and done and it was driving him crazy. He just wants to get back to work and he is exercising and doing everything he can to attempt that.

116       The plaintiff agreed he was totally stressed about his case. “Like he was in a car one minute and the next minute he was injured and he just did not understand.” He still had to get himself right before he could go back to work. Hopefully, he could, as he was too young not to be working.

117       In re examination the plaintiff said that in 2009, he had planned to return to work. He was gong to ring Doggets and go back to them. He was not able to do so as there were no positions there for him. The plaintiff was told he would be advised if a position came up but he was never contacted.

118       The plaintiff has not sought work since the accident because he is too sore. It would be impossible to do the heavy work in concreting, which “would kill his back.” He would not dare try lifting.

119       The plaintiff followed up the recent job offer with the boss at Doggetts but was told that there were no positions at present. The plaintiff told him he should be able to go back to work but did not think he would be able to do the same job he was doing.

120       In re-examination, the plaintiff said that since the accident, his back was improving but it got to the point about halfway through last year that it has not improved any more. He works on it constantly with hydrotherapy and physiotherapy.

121       The plaintiff’s worst pain continues to be in his lower back with pain going into right hip, buttock and leg down to the calf. It is constant and generally worsened with activity. An occasional limp continued and sometimes his right leg goes from underneath him, causing him to stumble or fall.

122       The plaintiff submitted a Claim Form on 22 June 2009 to the defendant. In which he described multiple nerve injuries, sprain of shoulder and neck pain and also injury to the spine, including lumbar spine.

Summary of the Plaintiff’s Earnings

Financial Year	Employer	Total Gross Amount
2002/03	K W Doggett & Co Pty Ltd	(Combined total)

EL Express (Vic) Pty Ltd $12,630

2003/04	K W Doggett	$32,220
2004/05	K W Doggett	$35,037
2006/07	K W Doggett	$2,108

The Plaintiff’s Medical Evidence

Treating Doctors

123       The plaintiff attended the Austin Hospital on 7 January 2009. The Hospital notes set out the primary diagnosis was soft tissue injury over the neck and right shoulder from a motor car accident.

124       Dr Ahern, the plaintiff’s general practitioner, reported in August 2011 that he had been treating the plaintiff for many years.

125       The plaintiff first attended him after the accident, on 27 January 2009 and then on 11 February 2009 complaining of neck, back and shoulder pain following the accident. There was no abnormality shown on a lumbar spine x ray. Because of his ongoing pain, the plaintiff was prescribed Panadeine Forte.

126       Dr Ahern reported that since the accident the plaintiff had attended him a total of thirty times for ongoing assessment of his pain, administration of analgesics, supervision of physiotherapy and hydrotherapy and for attention to his serious concomitant medical problems, including renal failure, severe asthma, hypertension and ongoing anxiety.

127       Dr Ahern arranged a CT scan of the plaintiff’s lumbar spine in June 2009 and MRI scans of the plaintiff’s right shoulder and lumbar spine in mid 2011.

128       Dr Ahern diagnosed a lower back soft tissue injury with exacerbation of previous degenerative changes and L4/5, S5/S1 disc bulges, chronic strain of the cervical spine and partial thickness tear of the right supraspinatus and infraspinatus tendons.

129       In Dr Ahern’s view, the plaintiff was incapacitated for any work due to his injuries and concomitant medical conditions.

130       Dr Ahern thought the plaintiff’s condition had stabilised but that the plaintiff required ongoing physiotherapy, hydrotherapy and analgesics. Dr Ahern noted anti-inflammatories were unable to be used due to the plaintiff’s renal condition.

131       In examination-in-chief, Dr Ahern confirmed he felt the plaintiff had recovered from the 1996 work injury. The plaintiff had made no complaints about his right shoulder before the car accident. He could not recall whether the plaintiff was depressed after the 1996 work injury, but there was anxiety as well as depression after the accident.

132       Dr Ahern thought if the plaintiff’s shoulder symptoms persisted surgery would certainly need to be considered..

133       Dr Ahern confirmed that the 2005 health problems for which the plaintiff was treated at the Austin had resolved to a large extent by about 2007. The plaintiff’s asthma was generally well controlled, with flare ups at times.

134       Dr Ahern thought if the plaintiff did not have the back pain, then he may be able to work. Further, the plaintiff’s shoulder alone would prevent him doing physical work which he used to do.

135       In cross-examination, Dr Ahern was taken through the references in the plaintiff’s file to Panadeine Forte before the accident. He agreed the plaintiff was prescribed Panadeine Forte during that time and there was sometimes many, many months when the plaintiff would not require it. Dr Ahern thought the situation was different now compared to 2002.

136       Whilst there were a number of consecutive months when Panadeine Forte was prescribed before the accident, it “was more of a sporadic sort of episode, which is not uncommon with people compared to what it is now.”

137       A reference in the notes to Panadeine Forte meant a prescription of 20 milligrams. Dr Ahern agreed it was a drug prescribed for significant pain. It had been prescribed for a left elbow complaint in 2002.

138       In more recent times, in an attempt to reduce the amount of Panadeine Forte, Dr Ahern has prescribed Panamax in quantities of 100 tablets and from March 2011 he has also prescribed Digesic. Dr Ahern thought it was better to keep down the amount of analgesia, rather than risk other problems to the plaintiff’s stomach, or risk addiction.

139       Dr Ahern agreed that the frequency of prescription of Pandeine Forte may have been more around 2005, but the plaintiff was not then necessarily taking as much of that medication as he had after the accident.

140       As of 2005, Dr Ahern could not predict whether the plaintiff would have bouts of leg pain or not.

141       Dr Ahern was then cross-examined about the prescription of Serapax. If he did no refer to the dosage, he would have prescribed 25 milligrams. Prior to the accident Dr Ahern was prescribing Serapax for depression and anxiety, noting the plaintiff had an extremely sort of traumatic life. Prior to the accident, the plaintiff also had problems with Hepatitis C.

142       Dr Ahern agreed he was basically prescribing the same rate of Serapax as before 2005, but he had the impression the plaintiff was probably taking a bit more now than then.

143       When asked about the psychological affects of the accident, Dr Ahern commented that any anxiety condition is usually a combination or due to a combination of factors and “certainly the plaintiff’s back did not help.” Further, certainly the plaintiff had not been seeing a psychologist prior to the accident.

144       Dr Ahern thought that the plaintiff’s dizziness and weakness which had been due at times to low blood pressure, had recently stabilised. Dr Ahern agreed the plaintiff has an ongoing problem with low blood pressure. The plaintiff takes a low dose of medication for his blood pressure, which has to be monitored. Cortysel that is being prescribed was helpful for the heart as well as blood pressure.

145       Profound low blood pressure has not been an issue with the plaintiff. The most recent major episode involving weakness and dizziness and falling down was six months ago. Dr Ahern had not been made aware of the plaintiff having any attacks like an epileptic fit.

146       Leading up to the accident, work was on the agenda again and Dr Ahern thought a return to work was actually discussed. The plaintiff was talking about going back to work, but Dr Ahern could not remember precisely when.

147       After the attempted return to work in 2007 and prior to the accident, Dr Ahern thought a return to work was certainly feasible or possible. That work would be work that did not involve potentially dangerous situations such as driving.

148       At present, there has been a partial recovery from the 2005 health problems and the plaintiff’s blood pressure was potentially a problem..

149       Dr Ahern agreed the radiological findings were fundamentally unaltered after the accident, but not the plaintiff’s symptoms. Dr Ahern thought if there was a recurrence of symptoms, it was not the same injury as in 1996. He would possibly have expect the plaintiff’s accident injury to resolve over time.

150       When asked why the plaintiff would not recover as he had following the 2996 work injury, Dr Ahern explained that the current situation had gone on much longer to his recollection than the previous one.

151       On re-examination, Dr Ahern confirmed Panadeine Forte had been prescribed for the plaintiff’s left elbow and also his right knee in November 2003. From 2003 to 2009, there was only one reference to back pain in Dr Ahern’s notes and that was on 20 September 2005.

152       On 6 August 2009, there was a notation, “getting depressed ++”. This was at the same time as the referral to Mr de la Harpe and Ms Georgiou.

153       Dr Ahern confirmed a number of the plaintiff’s blood pressure readings in April, May and July 2010,which were normal and stable. A prescription of 60 Panadeine Forte was noted in December 2010.

154       Mr de la Harpe, orthopaedic surgeon, examined the plaintiff on 29 November 2009 on referral from Dr Ahern.

155       The plaintiff told him of ongoing back pain since the accident.

156       On examination, the plaintiff had an antalgic gait stance. There was some restriction of lumbar movement in terms of flexion and extension by apprehension and pain. There was no neurological abnormality in the plaintiff’s lower limbs. The CT scan showed some degenerative change, particularly at the L5-S1 disc.

157       Mr de la Harpe did not feel there was any surgery required and he thought the plaintiff needed to continue with his physiotherapy, which should be extended to include Pilates.

158       Mr de la Harpe considered the diagnosis would be that of degenerative lumbosacral disc disease, which had been aggravated by the accident, giving the plaintiff back pain. Mr de la Harpe thought the prognosis was somewhat guarded.

159       Mr de la Harpe believed the plaintiff was incapacitated for any form of manual labour. He thought it may be possible at some stage for him to return to a sedentary occupation but there were significant restrictions as far as lifting, repetitive bending and twisting were concerned and with sitting or standing beyond half an hour.

160       Mr de la Harpe considered the plaintiff’s condition had essentially stabilised and that the plaintiff’s presentation was consistent with a pre-existing degenerative lumbar spine condition which had been aggravated by his accident.

161       In cross-examination, Mr de la Harpe agreed the plaintiff did not give him a history of the 1996 work injury.

162       Shown the investigations predating the accident, Mr de la Harpe thought they were in keeping with degenerative change in the lumbar spine without neural compression. All three studies in 2009 showed degenerative change but he could not really comment any further in the absence of the films, just having the reports. He could not say there had been any progression by 2009.

163       Mr de la Harpe explained an antalgic gait meant that the plaintiff was favouring one leg and there was possible unequal muscle spasm in the back. The lack of that finding on a later investigation would suggest an improvement.

164       Having been given the full history of the plaintiff’s pre-accident condition, Mr de la Harpe thought there was a significant pre-existing condition prior to the accident and more likely from time to time there would be exacerbations of symptoms.

165       Ms Georgiou, clinical psychologist, first saw the plaintiff in August 2009 on referral from Dr Ahern. She wrote to Dr Ahern in November 2009 and on two occasions late in 2010.

166       Ms Georgiou advised that the plaintiff presented with low mood after the accident and the exacerbation of a back injury. She considered his symptoms and history reflected a major depressive disorder. She noted there was a history of a series of failed relationships, severe life threatening illness, physical problems, homelessness and a difficult childhood and adolescence.

167       Ms Georgiou noted those factors were likely to have rendered the plaintiff vulnerable to his current difficulties coping and also that his isolation and financial difficulties were exacerbating factors.

168       Her treatment sessions were directed at utilising mainly behavioural and interpersonal strategies aimed at assisting the plaintiff to cope better with his physical pain. She noted that whilst the plaintiff was not only experiencing pain, he was also unable to work and remained largely unoccupied, which had exacerbated his depression. She advised that they were currently exploring pursuits and activities that the plaintiff could engage in and were not taxing on him physically, which could assist in providing him with some distraction and reduce his isolation.

169       In cross examination, Ms Georgiou confirmed her diagnosis of Major Depressive Disorder.

170       Ms Georgiou confirmed in cross examination that she most recently saw the plaintiff on 3 June 2011 and she was waiting to hear further from him.

171       Her main focus in treatment was to utilise approaches or strategies in terms of the plaintiff coping with pain and achieving a reduction in his depressive symptoms. She confirmed the plaintiff’s presentation varied from time to time.

172       Ms Georgiou was aware of the plaintiff’s previous illnesses. In her view, the accident had had a significant exacerbating affect.

173       Ms Georgiou vaguely remembered a conversation about the plaintiff returning to work. She felt that that was giving him some hope for the future. However, based on what she had seen, the plaintiff displayed quite a lot of agitation and anxiety and he was not able to sit for very long. Therefore she was not really convinced he had the capacity to sustain employment, either before or immediately after the Court proceedings were finalised. She was not a medical doctor, so she could not really comment. She thought the plaintiff required further treatment and consultations.

174       In cross-examination, Ms Georgiou was taken to her assessment notes which referred to the plaintiff considering a claim for pain and suffering in 2009. In re-examination, she confirmed it was not until 27 October 2010 that there was a reference in her actual attendance notes to pending Court proceedings.

175       Ms Georgiou did not really know much about the plaintiff’s pre-accident condition and she was really only able to comment about matters since she had started to treat him. Her impression was of ongoing isolation from the time of his serious illnesses. She did not really know much about the plaintiff’s medication intake and that was something she left to a medical practitioner. However, that was not to say that she did not think the plaintiff needed a medication review.

176       Based on the pain the plaintiff was reporting, Ms Georgiou thought it was restricting his ability to work and created or exacerbated his depression. If the physical symptoms were taken away, she thought work would be good for the plaintiff because he would remain occupied and distracted. He had told her, he had been depressed for years but coped while he was able to work. She considered the plaintiff would need to be psychiatrically assessed to see if he was all right to work.

177       Ms Georgiou agreed the plaintiff was feeling overwhelmed by the whole Court process and his treatment. He was struggling financially and it was difficult for him to attend appointments. In her view, he had managed to cope with his traumatic past before the accident.

178       The plaintiff was reviewed in the Liver Clinic at the Austin Hospital on 22 May 2007. Dr Ahern was advised by the Austin that it was three months since the plaintiff had completed treatment with Interferon and Ribavirin combination therapy for his chronic Hepatitis C and he had had a very pleasing response to therapy.

179       Dr Ahern was also advised by the Austin that the plaintiff had completely normal liver function tests and it looked very likely he would attain a long term response to therapy. It was noted however, his Hepatitis C viral PCR needed to be tested in three months to confirm that.

180       Following a review on 22 April 2009 in the Renal Outpatient Clinic, the Austin contacted Dr Ahern. He was advised that overall the plaintiff had been well and there had been no major issues. His blood pressure had been okay. His blood tests had been good. It was noted with normal renal functioning, it was thought most likely everything was okay.

181       The plaintiff was again reviewed at the Austin on 22 October 2008 in the Renal Clinic.

182       Dr Ahern was advised it would appear the plaintiff remained in remission of his glomerulonephritis. It was noted that the plaintiff was keen to cease his Coversyl and that that would seem reasonable. Dr Ahern was asked to keep an eye on the plaintiff’s blood pressure and testing urine for protein and advised that the Austin would review the plaintiff in six months.

Medico-Legal Evidence

183       Mr Simm, orthopaedic surgeon, examined the plaintiff on 20 April 2010.

184       The plaintiff told him he was on a disability support pension at the time of the accident. The plaintiff also had severe medical problems, including a myocardial infarction, liver failure and renal failure. He was also a chronic asthmatic.

185       In terms of past history, the plaintiff told Mr Simm of the work injury in 1996 in relation to which he was treated conservatively and his symptoms gradually stabilised. The plaintiff told Mr Simm he was able to return to work possibly in 1998 or 1999 as a forklift driver with Doggetts. He unfortunately had a relationship breakdown and was left without a fixed address and for about a year did not work, until returning to Doggetts in about 2002 where he had no particular problems with his back or right leg.

186       On examination, the plaintiff displayed normal gait. There was marked restriction of thoracolumbar movement and the plaintiff was tender to palpitation in his lower back. Neurological examination was normal.

187       There was no wasting of the right shoulder. There was restricted movement with considerable pain in extremes of forward elevation and abduction. Rotational movements of the abducted shoulder were associated with pain consistent with subacromial impingement.

188       Mr Simm noted the right shoulder and lumbar spine x-rays of February 2009, and the July 2009 CT scan of the lumbar spine.

189       Mr Simm defined the plaintiff as having suffered a severe serious long term impairment of the back as a result of the accident and he considered there was a less serious long term impairment of the right shoulder function.

190       Mr Simm diagnosed a soft tissue injury to the lower back and persistent and severe pain from unresolved aggravation of pre existing lumbar disc degeneration.

191       Mr Simm noted there was a past history of disabling low back pain with referred right leg pain in 1996 from which the plaintiff had recovered some years prior to the accident.

192       Mr Simm thought the plaintiff also suffered a soft tissue injury to the right shoulder. He noted the plaintiff had persistent right shoulder dysfunction with features of subacromial impingement, most likely diagnosed as a rotator cuff injury.

193       Mr Simm thought the plaintiff’s protracted symptoms may relate to unresolved aggravation of pre existing but previously asymptomatic rotator cuff pathology. He noted there were no special investigations of the right shoulder to establish a more definite diagnosis.

194       Mr Simm considered treatment should largely involve self management and symptoms should be controlled with analgesic medication if necessary.

195       In Mr Simm’s view, the plaintiff’s injuries totally incapacitated him for manual labour in his other pre injury employment. Noting that the plaintiff was on a disability support pension at the time of the accident, Mr Simm stated that the plaintiff’s work capacity assessment related solely to the injuries in the car accident.

196       Mr Simm did not believe the plaintiff had a residual capacity for work which included light or part time employment. He noted the plaintiff was unable to sit or stand for any length of time. The plaintiff could not tolerate physically based activities and he had limited use of his dominant right upper limb away from his body or in an overhead position.

197       Mr Simm believed if one took into account those limiting factors and the nature of pre injury employment, there was not any employment for which the plaintiff was suited. He thought the plaintiff would now be confined to non physical forms of employment for which he had no experience or training.

198       Mr Simm thought the plaintiff required domestic assistance.

199       Mr Simm considered that the lower back injury, which represented unresolved aggravation of degenerative pathology, had the potential to accelerate this pathology over a period of time.

200       Mr Simm thought there was a partial loss of the use of the dominant right upper extremity as well as the back.

201       Mr Simm suggested more information would probably be obtained from an MRI scan, which he expected would confirm the plaintiff had degenerative disc desiccation possibly in association with annular changes and disc bulging or protrusion.

202       In examination-in-chief, Mr Simm was shown the June 2011 MRI scan of the lumbar spine. He thought what was shown on that examination was confirmatory of his opinion.

203       He was then shown the right shoulder MRI scan which also confirmed his opinion that there was rotator cuff pathology and also some reactive changes of subacromial bursitis consistent with rotator cuff tendonitis. He would continue with conservative treatment in light of these findings before offering the plaintiff surgery.

204       In cross-examination, Mr Simm agreed that the findings on the lumbar CT and MRI scans taken after 2009 were within the range of what happens with aging degeneration, although the findings were not normal.

205       Mr Simm agreed that the marked restriction of thoracolumbar movement on examination was a subjective physical sign. He also agreed that pain was subjective and related to a lot of factors other than the physical generator of the pain, but these matters were more within the domain of a psychiatrist.

206       Whilst recovery was a possible outcome, Mr Simm thought it was also possible that people with those signs and symptoms do not recover. The fact that the plaintiff had recovered from a similar problem in 1996 did not guarantee he would recover this time. The chance of recurrent episodes of disabling pain increases with each episode.

207       Mr Simm thought the plaintiff’s current pathology was relevant but it was not severe or advanced. However he noted that pain is not proportional to the severity of the pathology on the MRI scan. He thought the duration of the 1996 episode was a very poor prognostic fact.

208       Mr Simm thought it was a possibility that the plaintiff’s pain would diminish in the future.

209       Mr Simm confirmed he thought the plaintiff could not do light work because of his back condition. Mr Simm understood the plaintiff was an unskilled forklift driver or factory worker. He did not think the plaintiff would be able to work in his previous occupation in light of his back condition, but he was not prepared to comment on the effect of the plaintiff’s other injuries or illnesses on the his capacity for work.

210       Mr Simm explained the plaintiff had a typical symptom pattern of difficulty standing, sitting and bending. He had already had problems with vibration from driving. He was not able to sustain physical activities like sweeping.

211       Mr Simm was asked about the mechanism of the plaintiff’s shoulder injury and confirmed rotator cuff tears could be seen in a variety of situations.

212       Mr Simm did not think the findings of reduced grip strength before the accident and the findings on the assessment in 2001 indicated a shoulder problem of any significance. He thought it was a pretty remote association between shoulder injury and reduction in grip strength and that restricted movement.

213       Mr Simm agreed if full shoulder movement was shown on recent examination there had been an improvement since he examined the plaintiff. A full range of movement in June 2011 would confirm Mr Simm’s view that no further operative treatment was desirable.

214       In re-examination, Mr Simm was asked about the clicking sensation found by Mr Kudelka on recent examination. Mr Simm explained in the context of the plaintiff having rotator cuff pathology, it was probably significant. The clicking probably meant the irregular rotator cuff was catching on one of the structures above the shoulder, the acromion or the coracoaromial ligament.

215       Mr Simm confirmed the plaintiff’s condition would persist with no prospect of improvement in the future and it was not likely to change.

216       The plaintiff was examined by Dr Helen Sutcliffe, occupational physician, on 22 June 2011.

217       The plaintiff told her that he had not worked since 2005, when he was recovering from a severe infection and he had been approaching fitness to return to work in 2009.

218       The plaintiff does not appear to have told her of the work injury. He told her that he suffered injury in the car accident to his right shoulder and low back pain.

219       On examination, the plaintiff complained of constant pain present in the right shoulder, anteriorally and posteriorally. He had persisting pain in the low back with radiation to the right buttock and the right leg laterally to the calf. He had some sensory symptoms in his right foot. He woke every night, with pain once or twice and had immediate onset of further pain if he sat.

220       On examination, there was a restricted range of lumbosacral movement. In the lower limbs there was alteration in power in the right leg, with decreased strength in right hip flexion, knee flexion and extension and dorsiflexion of the right foot, also on eversion and inversion. There was no alteration in reflexes. There was sensory change with dysaesthesia on light touch in the lateral right thigh and calf and there was mild allodynia in the lateral right calf.

221 There was restricted right shoulder movement. Hand grip using a dynamometer was thirty kilograms on the right and forty on the left.

222       From the history and examination and assessment of accompanying documentation, including the 2009 CT scan, Dr Sutcliffe believed the plaintiff suffered an aggravation of lumbar spondylosis in the accident. He had persisting pain and limitation of function and she considered the condition was stabilised. She also noted the plaintiff sustained injury to his right shoulder and thought it likely he had sustained rotator cuff injury, persisting impairment and loss of function.

223       Dr Sutcliffe considered the plaintiff had no capacity to return to his previous occupation of fork lift driver or store person or any occupation requiring lifting, bending, pushing, pulling or repeated movements of the right upper limb or elevation of the right arm. She noted, effectively, those restrictions resulted for all practical purposes in unfitness for general work as a result of the accident injuries. She believed the plaintiff sustained an aggravation of lumbar spondylosis and the onset of discogenic pain in the lumbar spine at L4-5 and L5-S1. In addition, he sustained right rotator cuff injury.

224       Dr Sutcliffe thought the plaintiff required analgesics and would benefit from physiotherapy and exercise based core stabilisation. He also required management of strengthening of the right upper limb. She thought the plaintiff’s prognosis was poor and the limitation of function and persisting pain would continue into the foreseeable future. She considered the accident injury resulted in loss of capacity for manual handling occupations for any practical consideration and she believed that would continue into the foreseeable future, as would restrictions on social, domestic and recreational activities.

225       Mr David Brownbill, consultant neurosurgeon, examined the plaintiff on 28 June 2011.

226       The plaintiff told him of the 1996 work injury and that he was off work for twelve to eighteen months. The plaintiff made a full recovery without any ongoing pain, although there was some intermittent mild back discomfort. He was able to return to his normal duties. In 2005 the plaintiff had the other health problems.

227       On examination, the plaintiff told Mr Brownbill his low back pain was present all the time and fluctuated in severity, often being severe. Right leg pain, present most of the time, involved the buttock and groin and extended down the back of the thigh, knee and upper calf. In terms of right shoulder pain Mr Brownbill noted the plaintiff stated “nothing else was wrong.”

228       On examination, active thoracolumbar spinal movements were half of full in extension and two thirds of full in other directions. There was tenderness low to the right of the lumbar spine. There was full and equal power in all muscle groups of the lower limbs. Reflexes were present and symmetrical. There was no abnormality of power, tone, reflexes or sensation of the upper limbs, or any signs of radiculopathy or myelopathy.

229       Mr Brownbill considered on probability, the plaintiff sustained aggravation of lumbar spine degenerative change in the accident with resulting back pain and referred leg pain. He thought the plaintiff’s condition had stabilised and he anticipated that back and leg pain would continue in a fluctuating manner indefinitely.

230       In Mr Brownbill’s view, the plaintiff should in future avoid activities involving heavy lifting, full spine mobility, repeated bending or prolonged sitting or standing, and he would not be able to return to a manual type job.

231       Having seen the June 2011 MRI scan, Mr Brownbill thought there was no reason to modify the opinions he had previously expressed.

232       Mr Kudelka, orthopaedic surgeon, examined the plaintiff on 9 June 2011.

233       The plaintiff told him about the illness in 2005 and then the accident. Mr Kudelka noted the plaintiff was not fit for work but it was his understanding that the plaintiff had not worked for some time prior to the accident.

234       On examination, the plaintiff’s symptoms were back pain and pain down the outer right thigh to the top of the calf. The plaintiff’s right shoulder had improved. It clicked and was somewhat weak but the plaintiff said he had a full range of movement. The plaintiff advised that his main concern was back pain and a tendency for his legs to become weak after prolonged standing.

235       Lumbosacral movements were restricted. The right shoulder was very tender over the acromioclavicular joint, but the plaintiff had a full range of movement.

236       Mr Kudelka thought the plaintiff had suffered a mechanical injury in the lower spine, noting limited spinal movement and signs of right sciatic nerve root irritation. Mr Kudelka diagnosed a mechanical injury to the lower lumbar spine, causing back pain and right sciatica. He thought the prognosis was that as the plaintiff was only forty seven years old, some improvement was anticipated over the next year, but he thought the plaintiff’s condition could be considered stabilised, as there was no likelihood of significant improvement in the next twelve to eighteen months.

237       Mr Kudelka thought the plaintiff’s back injury would preclude and restrict him on a long term basis in relation to social, domestic and recreational activities, and that restriction would be a of a long term nature. He thought the plaintiff’s back injury would be a definite handicap were he to attempt to return to work as a fork lift driver and storeman.

238       Mr Kudelka was then given further information about the plaintiff’s right shoulder injury. Mr Kudelka confirmed that on examination the plaintiff had a full range of right shoulder movement but there was a clicking sensation.

239       Mr Kudelka noted that the June 2011 MRI scan of the shoulder showed degenerative changes in the right rotator cuff and a partial tear involved the supraspinatus and infraspinatus tendons. Therefore, Mr Kudelka added to his report that as a result of the accident, the plaintiff had residual impairment affecting his right shoulder which was in addition to the residual impairment of his lumbar spine. Mr Kudelka thought the right shoulder condition would also interfere with the plaintiff’s everyday activities and future employment opportunities on a long term basis. Therefore, the shoulder problem was not transient as Mr Kudelka had suggested in his original report, having also seen the affidavit in which the plaintiff deposed to various shoulder problems.

240       Dr Davis, occupational physician, examined the plaintiff in June 2010.

241       The plaintiff told him of a compensation claim in relation to his lower back in 1996 when there were radicular symptoms extending through his right lower extremities. The plaintiff advised that indeed, all of his symptoms eventually resolved and he was able to return to quite heavy work.

242       The plaintiff also told Dr Davis of his health problems in 2005.

243       The plaintiff described the accident and the fact that he suffered direct trauma to his right shoulder and quite severe pain in his lower back and a burning pain shooting through his lower limb.

244       On examination, the plaintiff complained of constant low back pain with radiation into the right inguinal region and a burning sensation in the right buttock through the right lower extremity almost as far as the ankle. There was fragmentation of sleep patterns. There was no mention of any shoulder complaint but Dr Davis did measure the movements of the plaintiff’s shoulders.

245       On examination, the plaintiff was tender over the right humerus. There was no evidence of any antalgic gait. The only clinical finding was tenderness of the lower right facet joint.

246       There was significant loss of side flexion although greater loss to the right and extension was painful limited to 15 degrees. The plaintiff could flex to bring his fingers to the junction of the middle and lower thirds of his tibia. He could squat and raise on his toes and rock on his heels. All reflexes in the lower limbs were present, symmetrical and quite brisk. There were no abnormal sensory findings.

247       Dr Davis noted the 2009 CT scan of the lumbar spine.

248       Dr Davis thought as a result of the accident, the plaintiff suffered a direct trauma to his right shoulder where he has developed tendonitis and probable subacromial bursitis. He thought it possible the plaintiff had also suffered at least an intrasubstance tear of the supraspinatus.

249       Further trauma was occasioned to the right L5-S1 facet joint, as well as injury to the joint capsule and surrounding myofascial components. The plaintiff also suffered aggravation of some pre existing asymptomatic disc degenerative changes.

250       Dr Davis noted such injuries were consistent with the plaintiff’s history and the plaintiff now presented with continuing symptoms and non verifiable radiculopathy in his right lower extremity.

251       Dr Davis thought the plaintiff’s presentation also suggested he had developed quite a significant adjustment to injury disorder with anxiety and depression and a degree of pain avoidance behaviour and thought the plaintiff should be referred urgently for counselling.

252       Dr Davis considered further rehabilitative intervention should include a gym program and intermittent access to physical therapies, avoiding harmful medication.

253       Dr Davis thought the combination of the plaintiff’s physical and psychological sequelae to injury had resulted in a considerable loss of independence. He thought the plaintiff required provision of paid commercial domestic assistance to a level of at least eight hours a week.

254       Dr Davis thought the plaintiff would not be expected to be able to undertake any of his normal domestic repairs and refurbishments and that he was significantly restricted in his social activities and ability to enjoy general amenities of life. He thought the plaintiff’s injuries would restrict him in any form of sporting activity and there would be marked restriction in his desired levels of sexual activity.

255       In Dr Davis’ view, the plaintiff should avoid all work of a weighted or forceful nature, as well as repetitive movements of his right upper limb, work above head height, repetitive or sustained flexion, extended periods of travel, working in confined or awkward spaces, or indeed any activity which would result in a requirement to maintain static postures in his lower back.

256       Dr Davis considered the plaintiff’s combined reaction to the injury would prevent him from returning to any form of employment unless his psychological issues were successfully treated by way of counselling to include cognitive behavioural therapy.

257       Dr Davis thought the plaintiff’s prognosis for ever returning to the workforce was extremely guarded. He noted that the plaintiff had always essentially undertaken unskilled work of a rather arduous nature and he did not believe the plaintiff would ever be suitable to return to any of his former areas of employment. He concluded that the plaintiff may be described as having achieved maximum medical improvement.

258       Dr Strauss, psychiatrist, examined the plaintiff on 11 March 2010.

259       The plaintiff told him of the 1996 work injury and that his situation improved but even up until the time of the accident, he still had some back and leg pain which was significantly aggravated by the accident.

260       The plaintiff told Dr Strauss he had been on a disability support pension for about eighteen months but that his renal and liver problems had improved significantly by the time the accident had occurred and he was considering going back to some form of employment but he had not actively looked for work.

261       The plaintiff told Dr Strauss he had illness for a long time and the accident was very distressing for him as a consequence, especially if he was improving. He wondered if the plaintiff would ever work again.

262       The plaintiff told Dr Strauss he was depressed and sometimes tearful but not suicidal. He got angry and frustrated because of his restrictions and pain and he slept poorly. He had dreams and flashbacks to the accident.

263       On psychiatric examination, the plaintiff’s thinking was negative but there was no evidence of psychosis, delusions or thought disorder. The plaintiff was mildly anxious and depressed. Memory and concentration were reasonable. The plaintiff was oriented in time, place and person.

264       Dr Strauss thought the plaintiff was suffering post traumatic stress symptoms and a chronic adjustment disorder with mixed anxiety and depressed mood. Dr Strauss thought the accident was a significant cause of those psychiatric problems. He considered if the plaintiff’s physical condition was stable, or substantially stable, then his psychiatric condition would be similar.

265       Dr Strauss thought the plaintiff should continue to see a psychologist fortnightly for at least another three to six months.

266       Taking into account all factors, Dr Strauss believed the plaintiff was unemployable. He noted the plaintiff had trouble reading because of cataracts. He had significant physical problems probably due to the accident, and he had significant physical problems even before the accident. He also noted the plaintiff lived a very isolated life and was prone to irritability.

267       Dr Strauss noted that the plaintiff had always done physically demanding work and he doubted whether he would be able to work in the future, as he had not worked for four or five years. Taking all factors into consideration, Dr Strauss believed the plaintiff was unemployable.

268       Associate Professor Paoletti examined the plaintiff in June 2011.

269       The plaintiff told him at the time of the accident he was on Centrelink benefits. In 2005 he had had heart, liver and renal failure, but everything had come good and he was ready to go back to work.

270       The plaintiff told Professor Paoletti he was on WorkCover in 1996 and injured his back and was off work for a bit over a year and then he recovered.

271       The plaintiff told Professor Paoletti he does not sleep very well and the pain wakes him up all the time. He is worried about whether he can fix it and get back to work and he feels very depressed.

272       On mental state examination, the plaintiff’s affect was anxious and dysthymic, with some reactivity consistent with reported perversive mood state. Thinking stream and form was coherent and normal. Content had depressive ideation and an anxious phobia in traffic. There were no delusions. The plaintiff reported flashbacks of the accident but there was no suggestion or evidence or hallucinations or illusions. Concentration was reasonably good and there were no apparent deficits of memory or orientation. The plaintiff had reasonable insight into his illness and normal awareness of social norms.

273       Professor Paoletti diagnosed an anxiety disorder, not otherwise specified, with features of Post Traumatic Stress Disorder and traffic phobia and Chronic Adjustment Disorder with depressed mood.

274       Professor Paoletti thought the sessions with a psychologist should be re- established, given the plaintiff’s serious level and type of psychiatric illness. He thought additional referral to a psychiatrist may be considered for pharmacotherapy. Further, a trial of antidepressant medication would be appropriate to the plaintiff’s symptoms but consideration needed to be given to the plaintiff’s past medical problems.

275       Physical restrictions aside, Professor Paoletti thought that given plaintiff’s level of anxiety and depression, the plaintiff had no sustainable work capacity in an open job market.

276       Cross-examination of Professor Paoletti focussed on his view that view that the plaintiff had no sustainable work capacity.

277       Professor Paoletti confirmed the plaintiff presented as anxious and depressed, particularly in traffic. He was hyper vigilant and irritable. He experienced altered sleep function and altered socialisation with reported flash backs. The plaintiff appeared depressed and he also described depression. The plaintiff had told him about problems with libido.

278       In Professor Paoletti’s view, the plaintiff’s mood spoke for itself

279       Professor Paoletti did not think in his current state, the plaintiff had the capacity to sustain work, suggesting that he should have more treatment and re-establish sessions with the psychologist.

280       Professor Paoletti disagreed with Dr Jager’s opinion, unless the plaintiff had changed drastically in the two months, but he could not see that from the history that was given.

Investigations

281       A CT scan of the plaintiff’s lumbar spine was organised by Dr Ahern on 7 July 2009. It was reported there was mild lower lumbar degenerative disc disease. There was no central canal stenosis and no foraminal stenosis.

282       An MRI scan of the right shoulder was organised by Dr Ahern on 20 June 2011. It was reported there was a partial thickness tear involving the intrasubstance and articular surface fibres at the junction of the posterior one third of the supraspinatus tendon and anterior one third of the infraspinatus, mild diffuse tendinosis of the supraspinatus and infraspinatus, degenerative change in the superoposterior labrum without frank labral tear, mild degenerative change at the acromioclavicular joint, mild subacromial bursitis and mild chronic rotator interval synovitis.

283       An MRI scan of the lumbar spine was organised by Dr Ahern on 29 June 2011. It was reported there were minimal degenerative changes at the lumbar spine with disc degeneration and bulges at L4-5 and L5-S1 levels. There was no significant neural compromise.

284       Dr Ahern organised a right shoulder x-ray on 17 February 2009. It was reported glenohumeral and acromioclavicular joints were well aligned. Joint spaces were preserved and no fracture was seen.

285       An x-ray of the lumbar spine was carried out on the same date. It was reported that spine alignment was anatomical. Vertebral height and disc heights were preserved. The facet joints were normal and there was no pars defect. Sacroiliac joints had a normal appearance and no fracture was seen. Surgical staples within the right upper quadrant were noted.

The Defendant’s Evidence

1996 Claim Documentation

286       In October 1996, the plaintiff lodged a claim for back disc strain as a result of a broken seat on the forklift and constant vibrating. It was noted he had not had any previous back problems and the condition occurred on 23 September 1996. There was the employer claim report setting out a similar injury and description of the incident.

287       The plaintiff lodged a claim for permanent disability for his back and right leg on 26 November 1999.

288       The plaintiff swore an affidavit on 21 October 1999 in support of his 134AB application relating to the 1996 work injury.

289       The plaintiff deposed as to his education and work background and the fact he injured himself at work on 23 September 1996 whilst working for Feltex as a storeman and forklift driver. On that particular day he felt a jolt whilst driving a forklift and experienced immediate and severe pain in his lower back, right groin, testicle and right leg.

290       The plaintiff deposed he understood that that incident may have caused disc bulges at L1-2, L4-5 and L5-S1 as well as degeneration in his lower spine. He also believed there may be nerve root compression and that that was causing his right sided sciatica. Because of his injuries he also suffered from depression.

291       Whilst working for Feltex the plaintiff had some minor back pain caused by the lack of cushioning on the forklift as a result of which he required some time off work .

292       The plaintiff had two months off work and returned on restricted duties and limited hours gradually building up to full time. However in February 1997, he ceased work at Feltex because they did not have suitable light duties. He was in receipt of WorkCover payments until April 1998 when he worked for a month at Northern Steel as a truck driver but the work was too physically demanding. He was then on WorkCover payments.

293       The plaintiff deposed because of financial pressures, in March 1999 he started work for Khoury Spare Parts (“Khoury”) as a driver delivering car parts to various Mercedes Benz repairers. That work was very trying for his back, groin and right leg and on anything but short trips, he had to get out of the car and move his leg and back. He required assistance with unloading. He had a lumbar support in the utility. He required time off work because of the effect of his injuries.

294       The plaintiff deposed that he had constant pain in his lower back, right groin and testicle and right leg extending down to his ankle with the pain in his right leg feeling as though he had a rod stuck in it. He had difficulties standing or sitting still and could only walk slowly and walking upstairs or uphill was difficult. He could not run and he could only lift light weights and had difficulty turning round. He had undergone physiotherapy, hydrotherapy, occupational therapy, needed a lumbar support, was currently on anti-inflammatories, painkillers and sometimes sleeping tablets. He had been referred to Mr Johnson, orthopaedic surgeon.

295       The plaintiff deposed his injuries had impacted significantly on his domestic, recreational and social life. He had a very limited capacity to help with domestic chores and could not cook as it required him to stand and bend over too long. Most cleaning had to be carried out by his partner. The injuries had placed a strain on their relationship and sexual relations had been affected. The plaintiff did not sleep as well because of pain associated with injuries and depression.

296       Prior to the accident the plaintiff and his partner frequently went on walks, jet- skiing and rode go-carts together but the plaintiff could no longer engage in those pastimes. He also used to be a keen jogger, pool player and surf fisher.

297       The plaintiff deposed because of his injuries, his future employment prospects were very uncertain. He thought it was extremely problematic how long he could continue in his current job given his pain and the ongoing support he received. It was very doubtful whether or not he would be able to work in the many years ahead of his working life. He noted the plaintiff’s education was limited and he had only ever done manual work and he was currently working in pain because of financial necessity.

298       Before the accident the plaintiff was earning $407 net per week and he was currently earning $380. If he was unable to work in the future his loss of income would be significant.

299       A functional capacity assessment was carried out on 24 January 2001 by Occupational therapist and rehabilitation consultant, Christine Donald from Work Solutions Group.

300       She considered the physical restrictions for work were no manual handling between floor and knuckle height, light manual handling between knuckle, shoulder and overhead as per manual handling table, avoid standing longer than 20 minutes without regular position adjustment, avoid standing and walking longer than 20 minutes, avoid employment that involved repetitive manual handling and repetitive use of stairs and avoid high level balance activities.

301       In her view, it appeared that the plaintiff was not suitable for work due to manual handling restrictions and back pain and it was recommended he get treatment for his back condition.

The 1996 Work Injury – Medical Reports

302       A number of medical reports relating to the 1996 work injury were relied upon by the defendant.

303       The plaintiff presented to Dr Vaiopoulos on 23 September 1996, complaining of lumbosacral pain radiating down the right leg. He considered the plaintiff to have sustained a muscular strain to his back with stiffness and pain.

304       In February 1997, Dr Vaiopoulos advised the workers compensation insurer that he would have expected the plaintiff’s condition to be settling down with appropriate treatment.

305       Dr Ahern reported on 30 June 1998 that he had treated the plaintiff regularly since 1991. Dr Ahern noted the onset of low back pain in 1996 at work and the plaintiff’s subsequent referral for investigations and to Mr Johnson, orthopaedic surgeon.

306       Dr Ahern reported that over time the plaintiff had experienced ongoing pain in his lower back and right leg, symptoms entirely consistent with his lumbar disc disease which was degenerative in nature and certainly worsened by his work to a significant extent.

307       Dr Ahern noted the plaintiff had ongoing anti inflammatory treatment and physiotherapy and had cooperated actively with the Work Solutions Group rehabilitation organisation. He noted the plaintiff was now working doing alternative duties and he felt the plaintiff’s pain would be ongoing.

308       The plaintiff had physiotherapy treatment from Mr. Imbesi in mid 1998. he reported it was of concern that the plaintiff was not making significant progress to enable a successful return to modified work. He thought a program of exercises involving a mod ball was best for the plaintiff. Mr Imbesi hoped that in the not too distant future, treatment would lead to a stable work placement for the plaintiff.

309       Mr Kevin King, orthopaedic surgeon, examined the plaintiff on behalf of his solicitors in June 1999.

310       The plaintiff told him that over the last two and a half years he seemed to have remained much the same, with persistent back and right leg pain. About four months ago he had found a new job himself, driving a light utility truck. He could manage that light work, as there was no lifting involved.

311       On examination, the plaintiff complained of constant aching in the low back, present day and night, fluctuating in intensity and usually of moderate severity with occasional flare ups. He also complained of constant aching in the right groin and testicle, radiating to the right thigh into the mid calf. The pain was of moderate severity most of the time and was aggravated by any attempt to bend or lift.

312       On examination, there was quite marked limitation of thoracolumbar spine movement - limited by pain and spasm, to approximately one third of normal range.

313       Mr King had available the CT and MRI scans. Noting the circumstances of the 1996 injury, he thought the plaintiff continued to be chronically disabled to a moderately severe degree by persistent back and right leg pain. In his view, the plaintiff seemed to have stabilised. He thought the plaintiff would be permanently unfit to do heavy manual work which involved bending, lifting and riding around on an unsprung fork lift truck.

314       Mr King noted, on the other hand, the plaintiff seemed to be well motivated and found a job for himself driving a ute, delivering light spare parts. The plaintiff seemed to be able to manage that work without too much trouble and as long as the work continued to be available, Mr King thought that the plaintiff should be able to keep doing it.

315       Mr Clive Jones, orthopaedic surgeon, re-examined the plaintiff on 12 November 1998, having seen him the previous year.

316       The plaintiff told him that the right leg pain below the knee which troubled him earlier after the injury had now settled and his only leg pain was in the right thigh. His back ache was not too bad. Mr Jones concluded the overall disability now did not appear to be great.

317       Mr Jones thought there was some discogenic backache and the sciatic pain had cleared up or largely so. He considered the plaintiff was fit for suitable employment.

318       Mr David Chamberlain, orthopaedic surgeon, examined the plaintiff on 1 December 1998. The plaintiff told him he had a soreness in the lower back which tended to go into the right buttock and occasionally the knee.

319       On examination of the lumbar spine, there was no local tenderness and the range of movement was within normal limits, although the plaintiff complained of some pain at the extremes.

320       Mr Chamberlain thought the plaintiff appeared to have sustained a lumbar disc strain at work. Some two years later he appeared to have made poor progress despite prolonged conservative treatment.

321 Mr Chamberlain thought significant further change was unlikely. He considered the plaintiff was then capable of returning to lighter work and thought, in general, he would be better off doing work which avoided repetitive lifting, and that lifting should ordinarily be restricted to less than ten kilograms. Mr Chamberlain noted significant further treatment did not appear likely to be offered.

322       Dr Stephen Stern, psychiatrist, initially examined the plaintiff on 28 August 1997 and re examined him on 19 November 1998.

323       On both occasions, the plaintiff told him then he had constant right leg pain and recurrent pain in the low back, radiating to the right testicle. He also had recurrent depression and disturbed sleep.

324       On mental state examination in 1998, the plaintiff’s affect was depressed and tense and other findings were normal. Dr Stern noted there had been a slight deterioration in the plaintiff’s psychiatric condition from the first examination and he thought he was now suffering from moderate depression.

325       From a psychiatric point of view, Dr Stern considered the plaintiff fit for all work and that his psychiatric prognosis depended largely on the improvement of his physical disorder and return to work.

Investigations

326       A CT scan of the lumbosacral spine was organised on 17 October 1996 by Dr Vaiopoulos.

327       It was reported there was a mild annular disc bulge at L4-5 with no evidence of significant canal or neural foraminal stenosis. No abnormality was seen at L3-4 and L5-S1 levels.

328       An x-ray of the lumbosacral spine of the same date showed early or very mild degenerative changes at the L4-5 level.

329       A lumbar myelogram was organised by Mr Johnson on 14 March 1997. It was reported that no abnormality had been displayed to account for the apparent right sciatica. In particular there was no evidence of a disc protrusion.

330       An MRI scan of the lumbar spine was organised by Mr Johnson on 4 September 1997.

331       It was reported that alignment was within normal limits. A loss of signal intensity in the L1-2, L4-5 and L5-S1 discs was noted consistent with disc degeneration. Annular fissure was seen at L4-5 but no focal disc protrusion or significant central or bony foraminal stenosis. In particular, there was no focal disc protrusion at L5-S1 and no free disc fragment was identified. The L2-3 and L3-4 discs were within normal limits, as were the conus and abdominal aorta.

The Defendant’s Medico-Legal Evidence

332       Mr Michael Dooley, orthopaedic surgeon, examined the plaintiff on 24 March 2011.

333       On examination the plaintiff described ongoing low back pain. He also told Mr Dooley that he hit his right shoulder in the accident.

334       In terms of past history, the plaintiff told Mr Dooley he had developed low back pain and right sided sciatica during work. His symptoms settled in time in that regard and he then became unwell in 2005. The plaintiff advised that he had gradually recovered from that illness and had been unable to work after it.

335       On examination, there was tenderness of the right lower lumbar spine. There was some restriction of movement. Power, tone, sensation and reflexes were intact in the lower limbs.

336       Mr Dooley noted the CT scan in 2009 showed evidence of lumbosacral degeneration.

337       Mr Dooley diagnosed a soft tissue injury to the lumbar and cervical spine and also the right shoulder. He believed the injury to the plaintiff’s neck was musculoligamentous in nature and that the soft tissue injury to the right shoulder most likely involved some bruising to the subcutaneous tissues and perhaps deltoid muscles. He noted the plaintiff reported good improvement in symptoms relating to these injuries with gradual resolution in time.

338       Mr Dooley believed the soft tissue injury to the lumbar spine had involved some musculoligamentous damage and some aggravation of pre-existing degenerative disease at the lumbosacral level.

339       Mr Dooley noted around fifteen years ago the plaintiff was symptomatic from his lumbar spine with degeneration at the lumbosacral level, a possible right sided lumbosacral disc prolapse and right sided sciatic pain. He noted the plaintiff’s symptoms in that regard gradually resolved.

340       As it was two years since the accident, following this sort of injury, Mr Dooley would have expected the plaintiff to note some intermittent low back pain and on balance he believed the constancy and the intensity of the plaintiff’s ongoing pain were greater than you would expect to see for the injuries sustained and for the degree of underlying degenerative disc disease. Mr Dooley would have expected the plaintiff to have a greater sitting and standing tolerance. He believed it was important for the plaintiff to maintain general exercise regularly.

341       Overall Mr Dooley did not think that regular ongoing formal conservative measures were required and there was no indication for surgery.

342       Mr Dooley thought the plaintiff’s psychological reaction to injury and/or pain was contributing to his ongoing symptoms. He would expect the plaintiff to note difficulty with heavy physical work or work that involved a lot of bending and lifting and for the plaintiff to note difficulty with prolonged sitting and standing. From an orthopaedic point of view alone, Mr Dooley thought the plaintiff would be capable of carrying out light physical work and clerical duties.

343       Mr Dooley was subsequently forwarded the June 2011 MRI of the right shoulder. He thought the pathology noted on the MRI examination represented degenerative change and it was not caused by the accident.

344       Dr Jager, psychiatrist, examined the plaintiff in April 2011.

345       The plaintiff told him he had been on a disability support pension from 2002. The plaintiff advised he had used heroin from thirty three to thirty eight and had been on a Methadone program for five years. The plaintiff also told Dr Jager he had served a one year gaol sentence in relation to an armed robbery conviction.

346       On examination, the plaintiff complained of mild pain in his shoulder and that he had sustained a lumbar spine injury in the accident. The plaintiff said his mood was not bad “just a bit trippy” when driving and he was preoccupied with his safety.

347       The medical history given was one of chronic renal, heart and liver failure for which the plaintiff had been hospitalised and was in a coma in 2005.

348       On mental state examination, the plaintiff’s speech and thought stream were fluent and coherent but the content was negative. He described no bizarre beliefs or abnormal sensory perceptions and was alert and attended well to the interview.

349       Dr Jager diagnosed an Adjustment Disorder with anxiety. He thought the psychiatric symptoms did not interfere with the plaintiff’s capacity to undertake employment. The plaintiff cited a continuing interest in horse racing and V8 race cars but had diminished participation and enjoyment in those activities. However, he described his mood as not bad but said he did not really enjoy things now because of his pain.

350       Based solely on his psychiatric symptoms, Dr Jager thought the plaintiff had the capacity to undertake full-time employment within his physical restrictions. He thought the plaintiff required supportive counselling which could be provided by his general practitioner.

Overview

351       I accept that the plaintiff suffered injury to his lower back and right shoulder in the accident, reporting both injuries at the Austin on the said date.

352       As I consider the impairment to the lumbar spine to be the more significant of the two claimed, I will consider it first.

353       The plaintiff suffered an aggravation of pre exiting lumbar degeneration/spondylosis in the accident – an impairment which counsel for the defendant conceded was organically based although Mr Dooley thought there was some non organic contribution. However it was submitted on the defendant’s behalf that any impairment was not serious.

354       In this case, where there is a pre existing back condition, I must consider what the evidence discloses as to the prior condition of the plaintiff and determine whether the additional impairment resulting from the accident is serious and permanent.

355       In Petkovski v Galletti [1994] 1 VR 436, the Full Court of the Victorian Supreme Court accepted the proposition that –

“A comparison must be made of the condition of the applicant immediately before the accident with his condition thereafter and an assessment made of the extent of that additional impairment and if that additional impairment was not serious so it was said then leave must be refused. … .”

356       Obviously when considering the extent of any pre existing condition, the plaintiff’s evidence is particularly relevant. In this case a considerable attack was made on the plaintiff’s credit by counsel for the defendant.

357       The plaintiff’s credit was primarily attacked on the basis of his failure to acknowledge the seriousness of 1996 work injury and its ongoing consequences. In particular, counsel for the defendant relied on the plaintiff’s description of his back condition in his 1999 affidavit and the histories given to examiners such as Mr King at that time.

358 It was submitted that these versions of the plaintiff’s back condition at that time were not consistent with how he described his condition in his affidavits in support of the Section 93 application.

359       Clearly in 1996 the plaintiff had a significant injury which required conservative treatment over a number of years and in relation to which he was off work for two years. That period off work however followed three months or so on full time restricted duties that were later withdrawn by his employer.

360 The plaintiff deposed in October 1999 that he had constant back pain and a wide range of restrictions in terms of his work, domestic and social life. However in his affidavits in support of his Section 93 application, the plaintiff deposed that this condition had resolved, or substantially resolved, as of 1998.

361 Whilst there is some inconsistency between the various versions of his recovery from his 1996 injury and issues of the plaintiff’s credit and his readiness to overstate his symptoms for the purposes of his Section 134AB application were raised by counsel for the defendant, I accept that as of 1999 the plaintiff’s condition had significantly improved to the point where he was capable of taking on a driving job with Khoury where he worked for a year or so until he experienced a series of serious personal problems.

362       More significantly, from early 2003 the plaintiff was able to work full time at Doggetts – a job which involved some relatively heavy manual lifting earning in excess of $30,000 per annum – until 2005 when he became ill due to a number of unrelated health problems.

363       Dr Ahern, the plaintiff’s treater throughout, confirmed in cross examination that there had been recovery from the 1996 work injury. Whilst he prescribed Panadeine Forte at various levels until 2005 for conditions including back pain, he thought the plaintiff’s condition prior to the accident was “sporadic” and his pain was not as constant as since the 2009 accident.

364       In re-examination, Dr Ahern confirmed there was only one reference to back pain in his notes in that period and that was on 20 September 2005.

365       Save for this prescription of Panadeine Forte there is no evidence of any treatment beyond 1999 for the 1996 work injury.

366       The absence of any radiological change following the accident is not of any particular significance as doctors in this case, such as Mr Simm have explained, there is not necessarily a correlation between pain and symptoms and there can be an increase in symptoms with no radiological change.

367       In summary, whilst the plaintiff did suffer a back injury in 1996, he required a couple of months off work and then returned to full time restricted light duties for three months until such duties were no longer available. Having been in receipt of weekly payments for about two years, I accept that by 1999 the plaintiff had largely recovered save for occasional flare ups when he required medication. He was able to work full time first at Khoury, and later at Doggetts in a relatively heavy job without the need to take time off work or the requirement for any modification of his work duties until becoming ill in 2005.

368       Consideration of the plaintiff’s pre accident condition must also take into account the onset of liver, coronary and kidney problems in 2005. Clearly these were life threatening conditions until about 2007 requiring extensive periods of hospitalisation.

369       However, I am satisfied relying on the correspondence from the Austin and Dr Ahern’s evidence, that these conditions have essentially stabilised and require no further treatment save for monitoring and medication. The plaintiff has required no liver or kidney treatment for over two years.

370       In the last year or, so the plaintiff’s blood pressure which has been his most enduring problem, has stabilised as evidenced by various readings, with the plaintiff last experiencing an episode of dizziness due to low blood pressure some six months ago.

371       I accept the plaintiff was contemplating a return to work when the accident happened. Whilst he was in receipt of a disability support pension at that time, I do not accept he had decided his working life was over, particularly given his relatively young age and his general motivation to work.

372       I accept that whilst the plaintiff had some restrictions in terms of his ability to operate machinery or engage in driving duties because of dizziness/blood pressure as described by Dr Ahern, the plaintiff was otherwise fit to return to manual work as far as his back was concerned, when the accident occurred.

373       After the attempted return to work in 2007 and prior to the accident, Dr Ahern thought a return to work was certainly feasible or possible. As of the time immediately prior to the accident, Dr Ahern confirmed that the plaintiff was thinking about going back to work and he was not seeing any other treating doctors.

The Credit of the Plaintiff

374       Whilst there are obvious discrepancies between how the plaintiff described his back condition in 1999 for the purposes of the 1996 work injury and the level of recovery he has described in relation thereto for the purposes of the present application, I found the plaintiff to be a generally credible witness who in the past had tried to get on with his life in times of adversity.

375       Accordingly, I accept the plaintiff’s evidence as to his level of symptoms and restrictions relating to the accident.

376       Further, no medical examiner found the plaintiff to be exaggerating his complaints on examination. Mr Dooley was on his own when he commented that he would not have expected the level of ongoing problems two years after injury but he did accept the plaintiff had an ongoing disability.

377       Also, there was no surveillance film or other evidence calling into question the plaintiff’s evidence as to his pain and restrictions.

Consequences

378       Since the accident, the plaintiff has continued to experience constant back and right leg pain of varying intensity. Because of his pain, he is restricted in his ability to move freely. He limps on occasion and he has problems with prolonged sitting and standing.

379       The plaintiff continues to require large amounts of over the counter painkillers on a daily basis in an attempt to control his pain.

380       The plaintiff’s sleep is disturbed by pain and this lack of sleep causes him problems functioning the following day.

381       I accept that the plaintiff, who is still limited to some extent because of his blood pressure from driving and operating machinery, is incapacitated for manual work involving lifting or bending, prolonged sitting or standing as a result of his back condition.

382       The preponderance of medical opinion is supportive of this view.

383       Dr Ahern thought the plaintiff could work if not for his back condition.

384       Disagreeing with the suggestion that the plaintiff had a capacity for light work, Mr Simm explained the plaintiff had a typical symptom pattern of difficulty standing, sitting and bending. He noted the plaintiff already had problems with vibration from driving and that he was not able to sustain physical activities like sweeping.

385       Mr de la Harpe believed the plaintiff was incapacitated for any form of manual labour. He thought it may be possible at some stage for him to return to a sedentary occupation but there were significant restrictions as far as lifting, repetitive bending and twisting were concerned and with sitting or standing beyond half an hour.

386       In Dr Davis’ view, the plaintiff should avoid all work of a weighted or forceful nature, as well as repetitive movements of his right upper limb, work above head height, repetitive or sustained flexion, extended periods of travel, working in confined or awkward spaces, or indeed any activity which would result in a requirement to maintain static postures in his lower back. He thought the plaintiff’s prognosis for ever returning to the workforce was extremely guarded. He noted that the plaintiff had always essentially undertaken unskilled work of a rather arduous nature and he did not believe the plaintiff would ever be suitable to return to any of his former areas of employment.

387       Dr Sutcliffe considered the plaintiff had no capacity to return to his previous occupation of fork lift driver or store person or any occupation requiring lifting, bending, pushing, pulling or repeated movements of the right upper limb or elevation of the right arm. She noted, effectively, those restrictions resulted for all practical purposes in unfitness for general work as a result of the accident injuries.

388       Mr Kudkelka thought the plaintiff’s back injury would be a definite handicap were he to attempt to return to work as a fork lift driver and storeman

389       In Mr Brownbill’s view, the plaintiff should in future avoid activities involving heavy lifting, full spine mobility, repeated bending or prolonged sitting or standing, and he would not be able to return to a manual type job.

390       Mr Dooley expected the plaintiff to note difficulty with heavy physical work or work that involved a lot of bending and lifting and that he would note difficulty with prolonged sitting and standing. He considered from an orthopaedic point of view alone that the plaintiff would be capable of carrying out light physical work and clerical duties.

391       The plaintiff’s back condition continues to interfere with the plaintiff’s enjoyment of life in other respects.

392       The plaintiff’s inability to stand for prolonged periods has prevented him from returning to attending V8 cars and horse racing - activities he enjoyed prior to his 2005 illness. He is also restricted in his ability to do household tasks but does them as he has no assistance in this regard.

393       Further I accept the plaintiff is frustrated and upset by his ongoing pain and restrictions As Dr Ahern confirmed, the plaintiff’s accident injuries have resulted in an increase in his anxiety state and necessitated the referral to a psychologist for counselling.

394       I am permitted to take into account such an expected mental/emotional response to the plaintiff’s physical injury when considering the seriousness of an impairment pursuant to sub section (a)- see Winneke P in Richards v Wylie supra..

395       Taking into account all the evidence, I am satisfied the plaintiff has a serious injury in relation to his lumbar spine.

396       Having made that finding, I am not required to consider his application in relation to his right shoulder or psychiatric impairment.

397       Accordingly, I grant leave to the plaintiff to bring proceedings for damages in relation to the transport accident.

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