JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : IBRAHIM -v- AEROSPACE ENGINEERING SERVICES PTY LTD [2005] WADC 129 CORAM : MULLER DCJ HEARD : 26-27 MAY & 30 MAY-3 JUNE 2005 DELIVERED : 12 JULY 2005 FILE NO/S : CIV 941 of 2002 BETWEEN : RAGAB MOUSA MOHAMED IBRAHIM Plaintiff
AND
AEROSPACE ENGINEERING SERVICES PTY LTD
Defendant
Catchwords: Negligence - Liability of employer for injury to employee caused by fall from mobile platform - Whether platform should have been fitted with handrails - Symptoms of injury consistent with abnormal illness behaviour - Whether element of conscious exaggeration present - Failure to mitigate - Discount to be applied to what would otherwise be appropriate award
Legislation: Workers' Compensation and Injury Management Act 1981
(Page 2)
Result:
Plaintiff's claim allowed Representation:
Counsel:
Plaintiff : Mr J R Johnson
Defendant : Mr P C Lansell
Solicitors:
Plaintiff : Julian Johnson Lawyers
Defendant : Jackson McDonald
Case(s) referred to in judgment(s):
Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301
Kalavrouziotis v Howel & Anor, unreported
Fontaine v Quality Platers (1994) 12 WAR 71
Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18
Ingham v Eastough & Son Pty Ltd, unreported; FCt SCt of WA; Library No 950451; 21 July 1995
Kuligowski v Metrobus (2004) 208 ALR 1
Maloney v Commissioner for Railways (NSW) (1978) 52 ALJR 292
McLean v Tedman (1984) 155 CLR 306
Munce v Vinidex Tubemakers Pty Ltd (1974) NSWLR 235
Plenty v Argus [1975] WAR 155
Rae v The Broken Hill Pty Co Ltd (1957) 97 CLR 419
The Council of the Shire of Wyong v Shirt & Ors (1980) 146 CLR 40
Turner v State of South Australia (1982) 56 ALJR 839
Vozza v Tooth & Co Ltd (1964) 112 CLR 316
Watts v Rake (1960) 108 CLR 159
Case(s) also cited:
Nil
(Page 3)
1 MULLER DCJ: In this action the plaintiff is claiming damages from the defendant for injuries suffered by the plaintiff in an accident which occurred while he was employed as an aircraft tradesperson (air frame/engineer) at a hanger operated by the defendant at Pearce Air Base. The defendant has denied liability for the plaintiff's injuries.
Plaintiff's background and work history prior to accident 2 The plaintiff was born on 9 February 1958 in Egypt. He is now aged 47. He was educated in Saudi Arabia and completed his higher education in Egypt. After finishing school he joined what was known in Egypt as the Civil Aviation Institute and began training as an aircraft maintenance engineer. After completing his training he joined the Air Force where he acquired an aircraft maintenance engineer's licence. Following his service with the Air Force he worked in the aviation industry for approximately three years during which time he supervised a section in which 11 technicians were engaged working on approximately 15 aircraft. 3 The plaintiff was aged 33 when he came to Australia. His qualifications in the aeronautical industry were recognised and he studied English in Sydney for approximately 3-6 months before trying unsuccessfully to find a position in the aircraft industry. Because of the intensity of the competition in this field he was unable to find work and undertook a business course in which he learned computer and typing skills. Upon completion of this course he worked periodically with frequent intervals of unemployment. In 1992 he found work as an administrative assistant for a short period of between one to three months. The work involved typing/data entries and handling telephone enquiries. In 1994 he worked as a clerk at the Birrong High School where, once again, his duties included typing and data entry. He held this job in the administrative section of the school for a period of between 6-8 months and later that same year worked at the Islamic Centre for three months doing word processing and data entry. In 1995 he worked for eight months servicing and repairing mechanical hire equipment and in that same year worked for about one month as a console operator and motor mechanic. 4 Between 1996-1997 the plaintiff managed to find temporary full-time work in Albury as an aircraft maintenance engineer. After 3-4 months in this position he found similar work for about one month with another aeronautical firm. 5 In early 1997 the plaintiff applied for a position with the defendant and was interviewed in Sydney. He subsequently underwent a medical
(Page 4)
examination and was offered a position in Perth as a Aircraft Tradesperson (Airframe/Engineer). He began work on 15 September 1997 at the Perth Air Force Base. Initially he underwent intensive training which qualified him to certify aircraft used by his employer as being fit for use. After completing his training he began work on a flight line inspecting aircraft before and after use and issuing certificates of air worthiness. Subsequently, he was transferred to the maintenance department where he was required to undertake inspection work on aircraft. 6 The plaintiff said that prior to his accident he did a substantial amount of overtime work including weekend work. It was while he was working in the maintenance department that the accident occurred.
Circumstances of accident 7 On 21 February 1998, which was a Saturday, the plaintiff began work between 8.00-9.00 am. He wore overalls and work shoes provided by his employer and was assigned the task of working on the tail section of an aircraft. He described how he was required to remove a series of screws in panels on either side of the tail assembly of the aircraft. The panels in question were located on either side of the fuselage between the upright and horizontal stabilisers. In order to reach this area, which was approximately 1.5 metres above ground level, the plaintiff was required to use a movable platform which he believed had been manufactured by the defendant. Photographs of the platform tendered at the trial showed that it consisted of a metal frame with three steps leading on to the upper platform which the plaintiff claimed to have been kneeling on at the time of the accident. There are no safety rails on either side of the steps leading up to the platform itself. The platform was manoeuvrable and had two small wheels on the front uprights which enabled it to be manoeuvred into whatever position was required simply by raising or lifting the bottom step and pushing or pulling the entire unit into the required position. On the morning of the accident the platform was positioned behind the tail of the aircraft. The upper platform or top step was level with or just below the horizontal stabilizer on the tail section of the aircraft. The tasks the plaintiff had to perform required the removal of screws on either side of the tail assembly. In order to remove the screws he said he knelt on his right knee on the top level of the platform with his left leg and knee in a raised and flexed position and his left foot resting on the platform itself. In this position the screws he had to remove were approximately between waist and shoulder height and he had to lean forward in order to remove them. He had done similar tasks about 10 to 20 times in the past in
(Page 5)
exactly the same way. He had never received any instructions on how to position himself on the platform but received directions on how to remove the screws from the panels he was working on. Operating from the platform was by no means a new experience because his previous work before joining the defendant had involved the use of similar platforms to gain access to raised sections of the aircraft. The major difference between the platforms he had used elsewhere and those made available by the defendant was the presence of safety rails on both sides of the steps and the platform itself. 8 After removing some screws on the left side of the tail assembly the plaintiff moved to the right side of the platform, adopted the position I have already described, and began removing some screws from the right side of the aircraft. Having completed that task he said he stood up intending to move back to the left side of the tail assembly in order to remove the remaining screws he had left in place to keep the panel intact. As he stood up he said he began to turn either to his left or right – he was unable to recall exactly which way he did turn – when his right foot slipped off the right edge of the platform and he fell onto the concrete floor of the hanger on the right side of the movable steps. At the point where he fell the concrete floor sloped slightly downwards towards a drain located on the side of the hanger wall and the plaintiff landed first on his right buttock and then on his back and elbow. He recalled his right leg was raised after he fell and that his left leg was on the floor. He said his head was thrown back by the fall but did not actually hit the concrete surface. 9 The plaintiff's account of where the platform was positioned and what he was doing when he fell from it was contradicted by a co-employee, Mohd Nizam, a senior aircraft technician who in 1998 was working for the defendant at its facility at Pearce Air Base. At the time Mohd Nizam was authorised to certify aircraft fit for use whereas the plaintiff was still awaiting authority to do so. The witness, Mohd Nizam, said the accused was working under his supervision on the day of the accident. He described how he and the plaintiff had been working together from 8.00 am on that day performing a series of tasks and, towards the end of their shift, were directed to check the bolts attaching the rudder to the vertical stabiliser on a particular aircraft. These bolts or fastenings were located approximately half way up the rudder. The witness described how he personally manoeuvred the mobile platform to a position at right angles to the tail cone on the right side of the fuselage. He described how he stood on the platform and began his inspection. He said the plaintiff was standing behind him on the platform holding a
(Page 6)
particular spare part he might have needed. While inspecting the rudder he heard a thud and on turning around saw the plaintiff lying on his back on the ground. He was unable to say whereabouts on the ground the plaintiff was lying. He asked the plaintiff what he was doing and whether he was alright. The plaintiff said he was alright. Mohd Nizam described how he and the plaintiff then collected their tools, put them back in the tool box and returned the tools to the storeroom. He said the plaintiff walked normally and gave no appearance of being injured. When he next saw the plaintiff on the following Monday he asked him if he was alright and the plaintiff indicated he was thankful nothing had happened to him. Under cross-examination the witness denied the platform had been in the position described by the plaintiff and said he remembered distinctly where it had been because he had positioned it there himself. Contrary to what the plaintiff had asserted he also said the tail cone on the aircraft had not been removed at the time he worked on it. He also denied that the plaintiff had been removing screws or bolts on the vertical stabiliser immediately before the fall occurred. 10 The accounts given by the plaintiff and Mohd Nizam are irreconcilable. Taking into account where the onus lies I must decide which version I consider to be the more probable. This requires an assessment of the demeanour of each witness and the inherent probabilities and improbabilities in the testimony each gave. 11 Although the plaintiff had the assistance of an interpreter he proved to have a good command and understanding of English. He was reasonably articulate and seemed to have no difficulty understanding questions that were asked of him. On occasions he had difficulty with a particular word and had to seek assistance from the interpreter. Although he claimed his injuries had affected his powers of recollection and concentration I found no real evidence of that when he gave evidence. He seemed to remember the details of the accident without difficulty and there were no significant memory lapses relating to any of the other material aspects of his testimony. He did tend to be argumentative at times under cross-examination but I suspect this was probably a natural reaction to a situation he had not experienced before. His description of his actual fall however, was surprisingly rather vague. 12 While I was not unimpressed with the plaintiff as a witness, and am really unable to point to any particular flaw in his description of what occurred that would lead me to reject his account, I was certainly far more favourably impressed by the evidence of Mohd Nizam. Unlike the plaintiff, who became agitated at times, and perhaps understandably so,
(Page 7)
Mohd Nizam was calm and assured throughout his testimony and gave what I thought to be a very balanced account of what took place. He was fluent in English and, apart from the occasional expression which I found difficult to understand, his evidence as a whole, even in its technical aspects where it related to his work on the aircraft, was readily comprehensible. He is currently employed in Singapore doing work of a similar nature but on much larger commercial aircraft. On balance I prefer his account of events to that of the plaintiff. I say this for the following reasons. Apart from his uncertainty as to the plaintiff's position after the fall I found Mr Nizam to have a clear recollection of the events of that day. He was never hesitant in addressing points of detail and I found him to be most convincing. I also believe the probabilities favour his account of what happened. In the first place he was the senior or the two and had been working for the defendant for several years. He was also fully authorised to certify an aircraft fit for use whereas the plaintiff, as I understood his evidence, had yet to receive full authorisation. As the senior employee it is more probable, as Mr Nizam asserted, that he was in charge of the operation and undertook the actual task of checking the rudder bolts. I do not accept the plaintiff's assertion that, because Mohd Nizam had previously come from working in the flight line to the maintenance hanger, he was subordinate to the plaintiff and had to assist him. I also accept Nizam's testimony that he was the one who manoeuvred the platform into position at right angles to the tail cone of the aircraft. As the senior employee, and the person whom I have found was actually working on the tail plane assembly when the plaintiff fell, it is more probable that he would have placed the platform in the position he wanted it to be in. The criticisms of Mr Nizam's evidence by counsel for the plaintiff are, in my view, quite unfounded. 13 Contrasting the evidence of Nizam with that of the plaintiff I do find that the plaintiff's account of where he positioned the movable platform is surprising. If the platform had been located at the rear of the aircraft facing the horizontal stabiliser as the plaintiff alleged, the task of removing the screws on both the left and right sides of the tail section of the aircraft, even with the nose cone removed, would have involved the plaintiff having to lean forward at least half a metre into a position where, contrary to what he said, he would not have been able to use his body weight to any great effect to remove the screws. If the tail cone had been in its usual position, as I am satisfied on Nizam's evidence it was, the task would have been very difficult indeed. I find it would have been far more probable, as Mohd Nizam said, that the platform would have been placed
(Page 8)
at right angles to that side of the fuselage at the tail section of the aircraft where the work had to be done. 14 Having made these findings that the platform was positioned as described by Nizam and not as described by the plaintiff, and that the plaintiff was not doing what he claims to have been doing immediately before he fell, it remains to say that, apart from the plaintiff's credibility, probably little turns on these factual discrepancies. Wherever the platform was positioned the fact remains that the plaintiff was standing on it with his co-worker at the time he fell. The question still remains whether his employer owed him a duty of care and was in breach of that duty as alleged in the statement of claim. 15 Counsel for the defendant submitted that, if the plaintiff's evidence as to how the accident occurred was rejected in favour of that of Nizam, the plaintiff's claim must be dismissed. In support of that submission counsel relied upon the material conflicts in the way the plaintiff's case was pleaded and the evidence of Nizam. Reliance was also placed on the decision in Ingham v Eastough & Son Pty Ltd, unreported; FCt SCt of WA; Library No 950451; 21 July 1995. In that case the appellant alleged he had been injured while unloading metal cabinets which his employer had sold to a purchaser. The occurrence of the accident was denied by the respondent and the issue was whether it occurred at all. The trial Judge made no express finding that the accident occurred as alleged. It was implicit in his finding that an accident had occurred but not in the way alleged by the appellant. At p 8 Malcolm CJ remarked that it was also implicit on the state of the evidence that the trial Judge was unable to find how the accident occurred. The learned Chief Justice went on to say: "If nothing more appeared it would follow from that inability that the appellant had failed to prove how the accident occurred on the balance of probability and the action would fail." I believe the situation in this case is distinguishable. While I have rejected the plaintiff's account of how the accident occurred I am satisfied on the evidence of Nizam that the plaintiff did fall off the platform while assisting with the work on the aircraft. Unlike the situation in Ingham's case I am also able to infer how the accident most likely occurred. Given Nizam's evidence that the plaintiff was standing behind him on the platform and that he heard a thud and looked down to see the defendant lying on his back on the ground the most probable inference is that the plaintiff lost his footing and fell backwards off the platform. There may be a question as to whether he fell off the side of the platform or
(Page 9)
backwards down the steps. I do not believe much turns on that although his position on the ground on his back is more consistent with his having fallen backwards over the side rather than backwards onto the steps and then onto the ground. 16 I am convinced that is the most probable inference as to how the fall occurred. There was evidence from the defendant's own expert that the platform was too small for two workers to operate safely from it. This was never pleaded by the plaintiff and I propose to ignore it completely. 17 The inference I have drawn is not inconsistent with the plaintiff's pleading. As I say later in these reasons the only relevant particular of negligence was the alleged failure of the defendant to design and construct a work stand with a firm base, outriggers and guard railing thereon for its employees, including the plaintiff, to stand and work on the tail of an aircraft with safety. This allegation is broad enough to encompass the accident having occurred in the way I have found it occurred. The issue of guard rails, and the question whether they would have prevented the fall, or assisted the plaintiff to break his fall, have always been issues which the defendant was required to address. Even on Nizam's account those issues remain to be addressed.
Plaintiff's injuries following accident 18 Immediately after his fall the plaintiff felt pain in his lower and upper back and neck. He also began suffering from a severe headache. He was assisted by another worker and the supervisor, who was present at the time, told him to report what had occurred on the following Monday. At this point of time the plaintiff's shift had almost come to an end and he went home to rest believing that his pain would subside. Instead of decreasing, however, his pain increased and, on the following Monday, when he returned to work, he was in substantial pain and found it almost impossible to work. 19 On the following Tuesday he saw his general practitioner who declared him unfit for work for approximately three days. During this time the plaintiff said he tried to rest but his condition deteriorated and he was unable to sleep undisturbed. 20 After this short period off work he was certified fit for light duties but found he was simply unable to do the work his employer gave him because of his level of pain. He was certified unfit for work again and, when he again returned to work on light duties, found that his pain intensified to the point where he simply could not do what was required of
(Page 10)
him. By this stage he was using prescribed painkillers and other medication but his level of pain continued to increase and his sleep pattern continued to be disturbed. He underwent physiotherapy, hydrotherapy and treatment by a chiropractor but his condition did not improve. 21 In mid 1998 his general practitioner referred him to a psychiatrist. He described how he was depressed because of his level of pain and his inability to get anything other than temporary relief from the medication he was using. His psychiatrist, Dr Ng, prescribed antidepressants in increasing volumes and, although the drug helped alleviate some of his symptoms, he continued to feel depressed and found he was still unable to sleep properly. 22 Since 1998 he has continued with both his treatment and his medication but his symptoms have deteriorated over time and caused him to become increasingly concerned and depressed. At the time of the trial he described how he was suffering from back pain in his lower, mid and upper back with pain extending to his arms, legs and feet. He said he also suffered severe headaches and was unable to concentrate for any length of time. He described how he spent most of his days resting in bed and that his social life had become almost non-existent because of his inability to cope with his level of pain. What recreational activities he had before the accident, including swimming and playing tennis, were no longer possible. 23 He described how he was continuing to take anti-inflammatories, antidepressants and painkillers and also medication for an ulcer. 24 The plaintiff agreed he had received payments under the workers' compensation scheme until 2000 when the payments stopped.
Alleged breach of duty of care 25 In par 10 of the Amended Statement of Claim the plaintiff alleged that his injuries were caused by the breach by the defendant of its duty to take all reasonable precautions for the safety of the plaintiff and to provide a safe system of work. The pleading reads as follows: "10. The injuries pleaded in paragraph 7 hereof and the residual disabilities pleaded in paragraph 9 hereof were sustained by the Plaintiff by reason of the breach or breaches of the contract of employment and/or due to the Defendant's breach of it's duty of care to the Plaintiff.
(Page 11)
PARTICULARS OF BREACH (a) failing to take all reasonable precautions for the safety of the Plaintiff in that the Defendant – (i) required the Plaintiff to work on a mobile work stand at a height of an estimated 1.5 metres with a tendency to rock in the absence of a guard railing thereon and outriggers; (ii) failed to provide a stable work stand to the Plaintiff to enable him to attain a firm footing in order to carry out his duties at a height of an estimated 1.5 metres with safety; (iii) failed to provide a suitable plant or equipment namely; a mechanically operated work platform with guard railing thereon to enable the Plaintiff to attain the required height with safety such as a cherry picker; (b) exposing the Plaintiff to risk of damage or injury of which it knew or ought to have known in that the Defendant:- (i) required the Plaintiff to work on a mobile work stand at a height of an estimated 1.5 metres with a tendency to rock in the absence of a guard railing thereon and outriggers; (ii) failed to provide a stable work stand to the Plaintiff to enable him to attain a firm footing in order to carry out his duties at a height of an estimated 1.5 metres with safety; (iii) failed to provide the Plaintiff a suitable plant or equipment namely; a mechanically operated work platform with guard railing thereon to enable the
(Page 12)
Plaintiff to attain the required height with safety to carry out his duties such as a cherry picker; (c) failing to provide a safe system of work for the Plaintiff in that the Defendant – (i) failed to provide the Plaintiff a suitable plant or equipment namely; a mechanically operated work platform with guard railing thereon to enable the Plaintiff to attain the required height with safety to carry out his duties such as a cherry picker; (ii) failed to carry out a risk assessment of the task of working on the tail of an aircraft at a height of 1.5 metres standing on a mobile work stand with a tendency to rock and without guard railing thereon and outriggers; (iii) failed to install any guard railings on the work stand in breach of Clause 3.1.1.1 of the Australian Standard 1657 – 1985 SAA code for fixed platforms, walkways, stairways and ladders; (iv) failed to implement and enforce a safety policy for its workers including the Plaintiff as to how to carry out work with safety when required to work at a height without guard railings and outriggers on the work stand, and particularly failed to instruct the plaintiff to place 2 stands next to each other when completing the duty he was performing at the time of his accident, to increase the working area upon such stand's top step and reduce the risk of his falling; (v) failed to design and construct a work stand with a firm base, outriggers and guard railing thereon for its employees including
(Page 13)
the Plaintiff to stand and work on the rail of an aircraft with safety; (vi) failed to warn the Plaintiff as to a risk of injury in the event of him using the mobile work stand with a tendency to rock with no guard railing thereon in order to carry out his duties to work on the rail of an aircraft. 26 Given my earlier finding that the plaintiff must have lost his footing and fallen backwards off the platform, and most probably from one of the unprotected sides at the top level, many of the particulars of breach relied upon in the statement of claim lose their relevance and the only remaining issue is whether the defendant failed to provide a safe system of work in requiring the plaintiff to operate from a platform without guard railing. In support of this allegation the plaintiff called a consultant engineer, Jack Agpar, whose report was admitted into evidence by consent. Having viewed the photographs of the platform from which the plaintiff allegedly fell, or at least a similar platform, the witness reached the conclusion that a simple and low cost solution that would have reduced the risk of a fall was the installation of hand rails. It was common cause that the platform had three steps leading up to it and was approximately 1.2 metres high. The platform or upper level was 970 millimetres long and 635 millimetres wide. The photograph showed the platform had no hand rails on either side of the steps leading up to the top level or any guard rails at the upper level. While agreeing that the installation of hand rails would make the platform more likely to tip over by the application of lateral energy or force to the hand rails, the witness said this could be counteracted by the addition of outriggers or metal extensions to the base of the platform and the attachment of stabiliser screw jacks to those extensions. The photographs tendered by the plaintiff include photos of this type of platform with guard rails, extensions and stabiliser screw jacks. Another possible solution, according to Mr Agpar, was to increase the stability of the platform with the guard rails installed by simply increasing its weight at base level. While he agreed with the proposed evidence of the defendant's expert that a lateral force of 10-20 kilograms applied to the hand rail fitted to the type of platform from which the plaintiff fell might cause it to topple over he said this danger could be removed by increasing the weight of the platform or preferably by adding another two wheels and fitting it with outriggers and stabiliser screw jacks.
(Page 14)
27 It was suggested to Mr Agpar in cross-examination that a platform similar to the one from which the plaintiff fell would, if fitted with hand rails, be unable to be manoeuvred underneath the fuselage of an aircraft and was more likely to damage the fuselage itself by coming into contact with it. The witness agreed with both these observations but queried the necessity for a platform to be placed underneath the fuselage when it was evident from the photographs before the Court that, even in a raised position on jacks, the underside of the fuselage was accessible to a workman standing on the ground. In relation to the issue of damage Mr Agpar said that the rails could be cushioned to minimise the potential for such an occurrence.
28 The evidence of Mr Agpar has to be contrasted with that of the expert called by the defendant. Mr Martin Simms, who is also a chartered consulting engineer, examined the platform from which the plaintiff fell, or at least a platform identical to the one involved, and produced a report that was introduced into evidence. He described the platform as a mobile scaffold used essentially as a substitute for a stepladder. Given the low height of the platform and the necessity for it to be easily manoeuvrable Mr Simms expressed the view that the installation of hand rails would limit the practical use of the platform under and around small aircraft and would also increase the risk of impact damage to the fuselage. He also stressed that because of its light weight the installation of hand rails would render the platform likely to tip over if a force of as low as 10 kilograms was applied to it at guard rail height. 29 I have already referred to the evidence of the plaintiff's expert, Mr Jack Agpar, who attempted to answer the issues raised in Mr Simms' report. The first issue I have to decide is whether, given that the height of the platform was only 1230 millimetres, and that it was clearly intended to be a light weight moveable substitute for a stepladder, the employer was in breach of his duty of care towards the plaintiff by failing to take reasonable steps to make the platform a safe base from which to work. 30 The duty of an employer is to take reasonable care to avoid exposing its employees to unnecessary risk of injury Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18 at 25; Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301 at 307-8. The employer's duty is not an absolute one; for liability to be established the evidence must show that the defendant unreasonably failed to take steps, reasonably open to it in all the circumstances, which would have protected the plaintiff from the dangers of his task without unduly impeding its accomplishment. Vozza v Tooth & Co Ltd (1964) 112 CLR 316 at 319. Where the evidence does
(Page 15)
establish an unreasonable failure by the employer to protect the employee from foreseeable danger, the employee cannot succeed unless he or she satisfies the court that if precautions had been taken the injury would probably have been avoided. Turner v State of South Australia (1982) 56 ALJR 839. Care must be taken to judge the matter from an a priori and not from an ex post facto view. Rae v The Broken Hill Pty Co Ltd (1957) 97 CLR 419 at 422. The use of increased knowledge or experience gained in hindsight must be avoided. The matter must be judged in prospect and not in retrospect. Maloney v Commissioner for Railways (NSW) (1978) 52 ALJR 292. 31 In The Council of the Shire of Wyong v Shirt & Ors (1980) 146 CLR 40, at 47 Mason J explained the correct approach to follow in judging whether a defendant has breached his duty of care: "In deciding whether there has been a breach of the duty of care the Tribunal of Fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the Tribunal of Fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the Tribunal of Fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position. The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far fetched or fanciful is real and therefore foreseeable. But, as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. The magnitude of risk and its degree of probability remain to be considered with other relevant factors." 32 I have no hesitation in finding that a reasonable person in the defendant's position would have foreseen the risk of injury to a class of persons, including the plaintiff, using the kind of platform said to have
(Page 16)
been used in the accident. This applies to the plaintiff who, though not actually working on the aircraft, was standing on the top step with a spare part ready to give it to the other person who was actually doing the work if it was required. Although the platform was not particularly high an uncontrolled fall onto a hard surface from a height of 1.2 metres would clearly involve a significant risk of injury to the person involved. The likelihood of such a fall was increased by the relatively small area of the platform. If it was reasonably foreseeable that a person using the platform might fall off it while assisting in the work on an aircraft, as I have found it was, the next question I have to decide is what a reasonable employer would have done in response to that risk. Because the area of the platform was relatively small I believe the magnitude of the risk, and the degree of probability of its occurrence, were high. As against that I do not accept there would have been any unreasonable difficulties or expenses involved in addressing the problem by installing hand rails and, if necessary, adding two additional wheels to the bottom of the frame where the steps begin. Both engineering experts agreed that the installation of additional wheels would increase the stability of the platform and any instability or tendency to topple could, again on the evidence of both experts, have been counteracted by the use of outriggers and stabiliser screw jacks. What this would have entailed would have been the conversion of the platform into a smaller version of the larger types of platforms shown in the photographs contained in the book of photographs (Exhibit 3). Although no evidence was led as to the expense that would have been incurred in making these alterations I do not believe they would have been so great as to make such a solution impracticable. The reservations that the defendant's engineering expert had if such changes were made to the platform are, in my view, without foundation. The principal reservation Mr Simms seemed to have was that the installation of hand rails would prevent the platform from being inserted beneath the fuselage of an aircraft. I have already pointed out elsewhere there was evidence that access to the underneath of the fuselage was possible if a person simply stood at ground level and reached upwards. That this is so is shown by the photographs in Exhibit 3 which show an aircraft in a jacked up position with the underside of the fuselage clearly accessible to a person standing at ground level. The other reservation Mr Simms had was the possibility of the rails of the platform coming into contact with the relatively fragile surface of the aircraft's fuselage and causing damage or even penetrating the fuselage skin. While this is always a possibility it could have been reasonably guarded against by the installation of cushioning on the hand rails or, as one witness suggested, simply by the exercise of proper care by those using the platform.
(Page 17)
33 I have come to the conclusion that the defendant's objections to the installation of hand rails on the platform are without reasonable foundation. I believe that the defendant's duty to its employees included the installation of hand rails on these mobile platforms. In my view the evidence does establish an unreasonable failure by the defendant to protect the plaintiff from foreseeable danger. The installation of hand rails would probably have prevented the plaintiff, or anyone else in his position, from falling backwards over the side of the top level, or at least provide a means by which he might have broken his fall if he fell backwards down the steps.
34 I find the defendant was negligent in failing to provide a safe system of work as alleged in par 10(c)(v) of the statement of claim.
Contributory negligence 35 If, as I have found, the plaintiff must have either lost his footing or inadvertently stepped off the platform the question arises whether he failed to take reasonable care for his own safety. 36 I am not satisfied on the facts as I find them to be that contributory negligence has been established. His fall can only be explained by momentary inadvertence rather than any lack of reasonable care. The standard of care required of an employer requires him to take account of the possibility of inadvertent and negligent conduct on the part of others and reasonable steps must be taken to avoid such a risk. McLean v Tedman (1984) 155 CLR 306 at pp 311-312.
The medical evidence 37 Dr Mao, the general practitioner whom the plaintiff saw after the accident, referred him to a consultant psychiatrist, Dr Frederick Ng. Dr Ng saw the plaintiff on several occasions during a four month period in 1998. His initial diagnosis was that the plaintiff was suffering from a major depressive disorder with mood swings, lack of appetite, poor concentration and memory, weight loss and apprehension that he would not be able to work in the future and support himself and his family. He was also claimed to be easily tearful and felt a pervasive sense of sadness and loss. Upon examination Dr Ng found that the plaintiff's psychomotor temper was diminished in keeping with the diagnosis of depression and that his affect, or visible presentation, appeared depressed as well. These symptoms, in Dr Ng's opinion, co-existed with the plaintiff's feelings of acute pain which Dr Ng felt the plaintiff was unable to understand or cope with.
(Page 18)
38 The plaintiff's condition did not improve. When Dr Ng saw him on 16 May 2000 he found the plaintiff's symptoms largely unchanged. His state of depression remained and, quite significantly from Dr Ng's viewpoint, his state of pain remained as acute as it had been in 1998. Faced with these symptoms Dr Ng concluded that the plaintiff was exhibiting signs of abnormal illness behaviour in the sense that his subjective state of pain was incompatible with any physiological soft tissue damage. It was at this stage that Dr Ng concluded that the plaintiff had a major psychiatric illness comprising two distinct limbs: the first was a major depressive disorder of moderate severity and the other a chronic pain disorder contributed to by psychological factors. In his opinion the plaintiff's condition, both in 1998 and again later in 2000, was so acute that he had neither the capacity to work at all nor engage in any form of rehabilitative programme to prepare him for a return to the workforce.
39 The situation remained unchanged in 2002 when Dr Ng saw the plaintiff again. When he last saw the plaintiff before the trial, and prepared his latest report dated 27 April 2005, Dr Ng felt the plaintiff's major depressive disorder had improved and was partially in remission. While his symptoms of depression were less in 2005 than when he last saw the plaintiff in July 2002 he concluded that the plaintiff's chronic pain disorder remained unchanged and as severe as it had always been. 40 Dr Ng agreed that it was the plaintiff's chronic pain disorder that constituted the major obstacle to his being able to work. He emphasised that he had had the opportunity of observing the plaintiff's progress over a seven year period and, in his view, the plaintiff's preoccupation with his pain had become so entrenched that the prognosis for any significant recovery was very remote. 41 Dr Ng had no hesitation in concluding that the plaintiff has always been unfit to return to any form of work and remains so to this day. He was also adamant that the plaintiff lacked the capacity to participate in any rehabilitation programme and had lacked that capacity since May 2000. He was also certain that the chronic pain disorder had become so entrenched that even if, as a first step, the plaintiff underwent a programme of psychotherapy the prospect of his condition improving sufficiently to enable him successfully to undergo a rehabilitation programme designed to assist him to return to some form of work was very remote. While he conceded that the plaintiff's medico/legal difficulties were a factor contributing towards his condition, and that the resolution of his legal action might alleviate his condition, he was still of the view that the major obstacle was the plaintiff's chronic pain disorder
(Page 19)
which, in his opinion, had become so entrenched as to constitute a permanent bar to his rehabilitation or return to any form of work. 42 Dr Ng was cross-examined as to the reasons why the plaintiff might have declined to participate in a rehabilitation programme ordered by the Conciliation and Review Directorate in 1999/2000. I will quote in full the answers of the witness: "LANSELL, MR: I'm indebted to you, sir. Thank you. Doctor, I don't know whether you're aware of the proceedings in October – in 2000 in the conciliation review – all right. Well, what happened, if I can just summarise it very briefly, is that there was an attempt made to assist the plaintiff, Mr Ibrahim, to return or to engage in a rehabilitation program and an order was made that under the supervision of Peter Connaughton, who you probably know, and APM, the rehabilitation provider, he be ordered to participate in that process. The reason I asked you the question was because correspondence was entered into and instigated by Dr Connaughton and APM inviting him to make an appointment with each of them and he simply did not accept that invitation. That's why I was asking you, is there any – can you offer any psychiatric reason why he would behave like that and not at least make a single phone call?---Okay. Your Honour, we're dealing with the concept of avoidance here and obviously one possibility is he just didn't want to do it for reasons as your esteemed colleague has outlined. The second possibility is when people are in pain if he had the through that rehabilitation equates to increased pain, meaning doing things that would increase his pain, he would avoid it and the third factor is if you're depressed and your motivation is down, that could also be a possibility as to why he would've avoided it. Thank you, your Honour . . MULLER DCJ: Re-examination? JOHNSON, MR: No re-examination, your Honour. MULLER DCJ: He may have avoided, deliberately avoided, this program to be put in place or was in the process of being put in place either because he believed it would increase his pain level or because his pain in his depressed state had lowered his motivation to such an extent that he found it impossible to
(Page 20)
participate - - -?---Or it might be a reason that I'm not aware of, sir. LANSELL, MR: Yes. MULLER DCJ: Or he just didn't want to do it? LANSELL, MR: Or the reason you may not have been aware of it is because he had an issue with Peter Connaughton, for example?---But, sir, part of that could be, sir, this man being a proud man from his area, this is the sense I get – I mean, he wasn't going to trust doctors easily. He was - - - MULLER, DCJ: Well, he said that. He said the reason he didn't do it is because he didn't trust Dr Connaughton?---And he felt embattled, you see, because remember, sir, earlier on I said he faced this issue where he felt he was out of control, he was vulnerable, he was a man that felt he couldn't control the pain, couldn't control the situation. He wasn't going to trust anybody. He didn't trust me. He didn't trust me to provide him with the medications which was good for him. It was actually a pathological lack of trust; that's my opinion, sir. 43 It is clear from these answers, particularly his last comment relating to the plaintiff's alleged pathological lack of trust, that the psychiatrist had excluded any deliberate or conscious decision on the plaintiff's part to avoid participation in the rehabilitation programme in order to advance his claim for compensation. His non-participation in the proposed programme was, in Dr Ng's opinion, a product of his psychiatric condition following the accident. 44 The conclusions reached by Dr Ng have to be contrasted with those reached by Dr Laurence Teraci, a psychiatrist called by the defendant. Dr Teraci saw the complainant on one occasion on 17 May 2000. Like Dr Ng he agreed that the plaintiff had a recognisable psychiatric condition. His diagnosis was of an adjustment disorder/disturbance reflecting what he considered to be the mild depressive illness which the plaintiff had. He also diagnosed abnormal illness behaviour which he explained as the expression of pain exceeding both in duration and severity that which would be expected from the physical/clinical findings in the area of injury suffered. It was clear from what Dr Teraci said that, while his diagnosis was essentially the same as that of Dr Ng, his findings as to the degree of the plaintiff's psychological disorder were substantially different. Having given his reasons why he considered the plaintiff's
(Page 21)
depressive illness to be mild he went on to comment on the symptoms of abnormal illness behaviour which, he explained, was a compendious term which included Dr Ng's diagnosis of chronic pain disorder. While emphasising that in cases of abnormal illness behaviour the majority of persons unconsciously exaggerate their symptoms there are other cases where conscious exaggeration, or deliberate misrepresentation of symptoms, do occur. In order to distinguish between the unconscious and conscious exaggeration of symptoms he said it was necessary to look at a range of factors. In the plaintiff's case he said he had concentrated on the following factors: first, the inconsistency between the plaintiff's initial appearance and behaviour in the waiting room when the plaintiff was apparently able to move without restriction and engage in a normal manner with his conduct during the consultation when the plaintiff adopted a posture of pain and depression; second, the reports of the various experts in physical medicine who supported the presence of conscious rather than unconscious exaggeration; and third the plaintiff's conduct in declining to undergo rehabilitation which, in the light of his relatively mild symptoms, was indicative of a lack of motivation that was under conscious rather than unconscious control. It was this pattern of evidence, rather than any single factor, that Dr Teraci said pointed towards conscious rather than unconscious exaggeration. 45 While conceding that Dr Ng, as the treating psychiatrist, had been able to observe the plaintiff's pattern of behaviour over a substantial period, Dr Teraci did not agree that the ability to form a diagnostic opinion depended on the number of times, or the period over which, a patient was seen by the same psychiatrist. He said most psychiatrists are able to form a definitive opinion within a matter of minutes and gave reasons as to why that was so. He summed up his conclusions in answer to a question in cross-examination in the following way: "The point though, or one of the points you've made is that in assessing whether this man is consciously exaggerating or not is to evaluate the way in which he presents, and my point was surely the ability to make those observations over a period of consultation over a period of years gives you more opportunity to make that evaluation than you have, having seen him only once?---Firstly, I've argued the reason why that's not the case, and secondly, I would prefer not to state overtly why I consider my opinion is correct and Dr Ng's is not, but the reality is when someone presents in such a manner that their affect shifts so rapidly depending on the immediate needs of the presentation, whether it's the presentation of pain behaviour or the
(Page 22)
presentation of depression, then that strongly suggests that there's certainly exaggeration and it strongly suggests that there's a high possibility that there's some conscious intervention. That doesn't mean that the entire thing is fabricated, because I don't think that's the case. It's usually a mixture of conscious and unconscious elements in such cases. I'll take it - - -?---I'm just saying that the evidence I presented in my report is extremely strong that there's some element of conscious exaggeration. All right. And can you express an opinion as to the division between the conscious exaggeration and the subconscious exaggeration of symptoms?---Sir, I regret I don't think that's possible." 46 Unlike Dr Ng, Dr Teraci did not consider the plaintiff's psychological symptoms to be so severe as to preclude him from engaging in a rehabilitation programme. In his view the symptoms were mild and he believed the plaintiff would derive psychological benefit from engaging in a rehabilitation programme. He also believed the prospects for rehabilitation would have been even better in 2000 because, the longer a person believes he or she is ill, the more entrenched the problem becomes and, in Dr Teraci's opinion, the less likely it is that the person will successfully participate in rehabilitation. In relation to the issue of the plaintiff's rehabilitation Dr Teraci disagreed with Dr Ng's belief that the plaintiff had a pathological lack of trust in the person or persons assigned the task of supervising his rehabilitation. Dr Teraci emphasised that a pathological lack of trust might occur in the case of a paranoid psychosis but there was simply no evidence of psychotic depression in the plaintiff's case. There was also no indication of agoraphobia or profound psychomotor retardation which, like paranoid psychosis, might have accounted for the plaintiff's apparent avoidance of programmes that were suggested to him. While Dr Teraci was unable to say why the plaintiff avoided participating in these programmes he did state that it was definitely not the symptom or product of his psychiatric condition. He agreed, however, that the current litigation in which the plaintiff was involved might have been a motivating factor and he explained in detail why he had reached that conclusion. 47 Returning to the plaintiff's present condition Dr Teraci, unlike Dr Ng, was of the view that rehabilitation would still assist the plaintiff although much would depend upon the plaintiff's motivation. He stressed that the
(Page 23)
physical component alone involved in any such programme would assist the plaintiff psychologically by compelling him to be active and thus diverting his focus from his illness and pain. If the plaintiff cooperated in such a programme Dr Teraci believed he would be able to return to work in a supervised position and might be able to manage two hours a day for the first six months. He believed that within a two year period the plaintiff would be capable of working at least four hours a day in an unsupervised manner and was likely to be able to return to full time work within a period of two to five years. The psychiatrist also expressed the view, quite significantly, that if the plaintiff had undergone a rehabilitation programme in 2000 the likelihood of his returning to his pre-accident employment would have been far greater than it is now. Even in the event of the plaintiff having undertaken such a programme and successfully completing it, however, Dr Teraci did not envisage him returning to aircraft maintenance except in a supervised role. 48 Dr John Salmon, a specialist in pain management, first saw the plaintiff in about June 1979 and was told of the plaintiff's level of anxiety, depression and irritability associated with his pain and his loss of function. Dr Salmon performed a series of tests which indicated that the plaintiff suffered from severe depression and what he described as a high catastrophisation score in relation to his ability to cope and a low pain self efficacy score. In Dr Salmon's opinion these psychological factors constituted a high risk of the plaintiff remaining disabled if not treated successfully. He believed a cognitive behavioural and graduated exercise based treatment should be put in place and, if not successful, the plaintiff should undergo an intensive cognitive behavioural pain management programme. Relying on previous experience and his assessment of the plaintiff Dr Salmon believed that, if the plaintiff successfully completed the intensive pain management programme, he would have had a 50 per cent chance of returning to work either in his pre-accident occupation or in some other type of occupation within approximately two years of completing the programme. The pain specialist was not familiar with the details of the plaintiff's pre-accident occupation but, when the general nature of the work he was doing was explained to him, he said he would have expected the plaintiff to be able to return to his former occupation because the nature of the physical work involved was only moderate. 49 Unfortunately, the plaintiff could not be persuaded to participate in the intensive programme suggested by Dr Salmon. His reluctance to help himself was evidenced by his failure to engage effectively in a home based exercise programme prepared by the pain specialist.
(Page 24)
50 In Dr Salmon's opinion the plaintiff was inclined to believe he was unable to help himself. While Dr Salmon agreed with the psychiatrist's opinion that the plaintiff had a psychological block that precluded him from returning to the work force or even participating in a rehabilitation programme he did not share Dr Ng's view that this obstacle was a permanent one and believed that, with the resolution of the plaintiff's claim, it was possible that he could undergo the intensive pain programme and possibly move on to some form of employment.
51 Dr Salmon's testimony is further confirmation of the plaintiff's reluctance to do anything to help himself. He conceded the psychiatrist was correct in his diagnosis that the plaintiff had a psychological block against participating in any rehabilitative programme. Where he disagreed with the psychiatrist, however, was whether that psychological obstacle could be overcome. Dr Salmon believed that, with the settlement of his medical/legal problems, the plaintiff's current psychological block would possibly be removed so as to enable him to complete the programme. This should be contrasted with Dr Ng's expressed conviction that the chronic pain disorder was so entrenched, and had been entrenched for so long, that the prospect of the plaintiff overcoming it and successfully completing any rehabilitative programme was too remote a possibility. 52 Dr Peter Connaughton, an occupational physician, was yet another medical practitioner who examined the plaintiff and concluded he was suitable for rehabilitation. Dr Connaughton initially saw the plaintiff on 22 July 1999 and concluded that he had probably sustained soft tissue musculoligamentous strain affecting the cervical, thoracic and lumbar areas with a component of facet joint inflammation. He also concluded that the plaintiff's condition reflected a high degree of abnormal illness behaviour and that, for the reasons expressed in his report dated 29 August 1999, the nature of the plaintiff's presentation was inconsistent with the objective findings. He believed early intervention and vocational rehabilitation, focusing both on improving function and training the plaintiff to return to work, was essential. 53 Dr Connaughton was the medical practitioner appointed by the Conciliation and Review Directorate in March 2000 to oversee the plaintiff's rehabilitation. He gave evidence of the exchange of correspondence and the efforts he made to arrange for the plaintiff to take part in the programme. The letters he wrote to the plaintiff were tendered in evidence. In the end he said the plaintiff did not respond to his requests.
(Page 25)
54 The plaintiff was next seen by Dr Connaughton on 28 April 2005. Initially the plaintiff allegedly told Dr Connaughton that his symptoms remained the same but, during the consultation that followed, he actually said those symptoms were worse. After examining the plaintiff Dr Connaughton again expressed the view that his history and overall presentation were not medically explicable or logical in terms of a medically recognisable clinical syndrome. He concluded that the plaintiff's condition was reflective of a complex compensation claim and set out in his report the reasons why he had reached that conclusion. He believed that the likely outcome of rehabilitation, if undertaken by the plaintiff shortly after the accident, would have been successful. He said in his report dated 27 May 2005 that he was not aware of any evidence to indicate that the plaintiff could not successfully have participated in vocational rehabilitation had he been motivated to do so and that, had he done so, the outcome would probably have been a return to normal full-time employment.
55 Dr John Rosenthal, a rehabilitation specialist who has been in practice for 20 years, saw the plaintiff on three occasions, namely, 8 May 1998, 21 April 1991 and 29 March 2005. On the first occasion he examined the plaintiff he considered him suitable for rehabilitation and suggested two specific programmes that might be suitable to meet the plaintiff's needs. It is significant that in his report dated 19 June 1998 Dr Rosenthal was unable to understand why the plaintiff was reluctant to undergo rehabilitation. At that time Dr Rosenthal felt the plaintiff had the capacity to return to full-time work in a clerical situation. He felt that the prognosis was good because the plaintiff presented as a genuine and positively motivated person. 56 These findings are in marked contrast to what Dr Rosenthal observed less than 12 months later on 26 April 1999. In his report of that date he described how the plaintiff walked very slowly, using a stick, and complained of headaches, painful restriction of neck movement, lower back pain and other ailments. A physical examination revealed restrictions that had not been present on the earlier consultations. This significant change in presentation led Dr Rosenthal to categorise it as one of florid abnormal illness behaviour. He explained that description by saying the plaintiff's presentation was as extreme as he had ever seen in his career encompassing more than 17,000 cases of compensable injury. He was adamant that in 1998 the plaintiff could have participated in a rehabilitation programme based on what he described as a multidisciplinary approach involving physical activity and treatment for the relief of pain and cognitive behavioural therapy. That type of
(Page 26)
programme, according to Dr Rosenthal, could have been put in place for the plaintiff either in 1998 or 1999 although he expressed the view that the longer the behavioural pattern becomes entrenched the more difficult it is to deal with it. 57 In cross-examination Dr Rosenthal was pressed on the issue of the nature of the plaintiff's presentation. He said he believed that it was to a substantial degree intentional and deliberate and not a product of any psychiatric disorder. When asked to explain why his conclusion differed from some of the psychiatric findings he said that, unlike the psychiatrists involved, he had had the opportunity to clinically measure the plaintiff's physical demeanour at three separate consultations in 1999 and 2005. He said he had taken into account the psychiatric reports he had been given but was adamant that the factors of depression and pain syndrome associated with psychological factors did not adequately explain the plaintiff's extreme behaviour. He denied that the plaintiff's presentation was consistent with an abnormal illness disorder because of the inconsistency of the plaintiff's behaviour in a clinical setting. His conclusion was that the plaintiff's symptoms were deliberately and consciously exaggerated. 58 The remaining medical evidence overwhelmingly favoured the view the plaintiff was permanently unfit to return to his former occupation. The reports of Mr Soni Narula, a neurosurgeon, were admitted into evidence. In his initial report dated 24 November 1998 the neurosurgeon described how the plaintiff's symptoms included pain in the middle of his low back and along multiple areas in his back extending to his left lower limb with additional symptoms in his neck. Upon examination Mr Narula found it difficult to find a clinical cause for all the plaintiff's symptoms. In a later report dated 5 November 1999 the neurosurgeon essentially repeated his earlier findings and expressed the view that the injuries were primarily subjective in nature rather than objective. At that time he did not believe it was likely that the plaintiff would be able to return to his pre-accident employment but did think that, with time, he would be able to perform light work. In his latest report dated 12 May 2005 he described how the plaintiff's symptoms seemed less exaggerated than on the three previous occasions on which he had seen him. He reiterated his belief that the plaintiff had suffered a soft tissue injury involving the cervical, thoracic and lumbar spine and facetal injury in the cervical spine with a likely facetal injury in the lumbar spine. These underlying injuries, however, tended to be overshadowed by what the neurosurgeon described as a "sick role" which the plaintiff had played which, in Mr Narula's view, appeared far out of keeping with the findings on examination.
(Page 27)
Notwithstanding this apparent tendency towards exaggeration the neurosurgeon was of the view that the plaintiff was not fit to return to his work as an aircraft engineer. He concluded that, while in the past he would have classified the plaintiff fit to undertake semi-sedentary duties of a non-exertional nature, he had changed his opinion and now believed that the plaintiff's current capacity to return to work of any kind would be guarded or poor given the length of his sick role as well as the ongoing symptoms he had shown. A bone scan of the cervical spine revealed a defect which, in itself, would in Mr Narula's opinion prevent the plaintiff from returning to his pre-accident occupation. 59 Dr Ross Goodheart, a consultant neurologist, saw the plaintiff on 29 August 2000 and concluded that he was suffering from predominantly soft tissue symptoms in the lumbar and cervical spines. He also noted that the plaintiff had developed a chronic pain syndrome associated with his injury. Dr Goodheart reviewed the plaintiff on 10 May 2005 and noticed very little change in his symptomatology over the five year period since he last saw him. He repeated his view that the plaintiff had suffered a soft tissue injury to his spine as a consequence of the accident on 21 February 1998 and that he had developed symptoms of a chronic pain syndrome associated with that injury. He joined with other medical practitioners in expressing the view that the plaintiff's current symptoms, which he believed would persist for the foreseeable future, precluded him from returning to work as an aircraft maintenance engineer. 60 The reports of a neurosurgeon, Mr Michael Lee, added little to what is already known about the plaintiff's condition. Mr Lee believed the plaintiff's fall, while not causative of any structural damage, had probably resulted in soft tissue injuries that were the probable cause of his continuing pain. Mr Lee, as with the other medical practitioners who examined the plaintiff, suspected there might have been cultural factors contributing towards the plaintiff's perception of his levels of pain but also expressed the view that he was not qualified to comment on those other factors. In his latest report dated 6 May 2005 he remarked on the absence of any improvement in the plaintiff's symptoms over the six year period when he had last seen him. In his view the absence of any improvement over that period of time indicated that the plaintiff had developed a chronic pain state in July 1999 and that this condition had persisted to the present date. He expressed the opinion that the plaintiff had become an invalid as a direct and indirect consequence of his accident. In that same report Mr Lee expressed the view that the plaintiff did not have a present or future working capacity.
(Page 28)
61 Professor Andrew Harper, an occupational physician, saw the plaintiff in 1999 and concluded then that he had a significant level of disability due to a pain disorder associated with both psychological factors and the physical condition of his neck and back. He reviewed the plaintiff on 10 May 2005 and saw little change in his condition. The plaintiff's symptomatology was similar to what it had been more than six years earlier and Professor Harper was still of the view that the plaintiff had suffered sprain injuries to the cervical and thoracic spine leading to the development of a pain disorder and an adjustment disorder. He formed the view that the pain disorder was associated with both psychological and physical factors and that it was impossible to separate the two. He did believe, however, that the plaintiff's current psychiatric condition was the major problem. In his view the plaintiff's symptoms were involuntary and not due to malingering. While he was firm in his opinion that the plaintiff was not capable of working either now or in the foreseeable future he agreed that in 1999 it would have been appropriate for the plaintiff to have undergone psychiatric treatment as a first step towards his rehabilitation. He believed that successful psychiatric treatment would have prepared the ground for vocational rehabilitation designed to equip the plaintiff for some form of gainful employment.
62 The first of the medical witnesses called by the defendant was Dr Alan Home, an occupational physician, who saw the plaintiff on one occasion on 6 March 2001. He also reviewed the plaintiff's medical history contained in the reports of the other medical practitioners who had seen him. One of the reports he had access to, and which he relied heavily upon, was a report dated 11 March 1998 by Dr A A Klimaitis, a consultant physician who had seen the plaintiff in March 1998 very shortly after the accident. In this report Dr Klimaitis described how the plaintiff said he had felt tired and weak for at least five years and had experienced unilateral temporal headaches associated on occasions with visual changes. The report also focused on the stress the plaintiff had suffered and expressed the view that Addison's disease was a possibility. Dr Alan Home said he questioned the plaintiff about the findings in this report but the plaintiff simply denied that he had been unwell before the accident. Upon examination Dr Home was unable to find any significant structural injury in the cervical or lumbar spine to account for the widespread distribution of pain the plaintiff claimed to be suffering from. The lack of any positive clinical indicators of pain, together with the information he gleaned from the medical and rehabilitation files relating to the plaintiff, led the witness to conclude that, while the accident may have had an adverse psychological effect upon the plaintiff, there were
(Page 29)
conscious motivational factors behind his presentation of pain. He believed there was evidence of contrived behaviour with deliberate exaggeration and embellishment by the plaintiff of his medical condition. His understanding of the plaintiff's history was that he had been unwilling to return to his pre-accident occupation from a very early stage and was simply not motivated to go down the path of vocational rehabilitation. 63 I have had to be careful in my assessment of Dr Home's evidence because of his concession that his conclusions were heavily dependent on the material contained in the Klimaitis report and, in particular, on the plaintiff's alleged contradiction of what was contained in that report and his assertion that the fatigue he suffered from was a result of the work related accident. The plaintiff was never cross-examined on this issue and did not have the opportunity of answering the allegation that he had, in effect, not been entirely open or frank with Dr Home. Taking this factor into account, and adopting a cautious approach to Dr Home's evidence, there is still no reason why I should view with any scepticism Dr Home's opinion that the plaintiff was capable of undergoing rehabilitation in early 1998. Dr Home drew attention to a report of the psychiatrist, Dr Ng, in July 1998 when the psychiatrist said he was encouraged by the plaintiff's tenacity, strong willed nature and strong drive towards independence as factors that would indicate he would like to help himself overcome his problems. He expressed the view that if the plaintiff had undergone rehabilitation early enough the outcome might have been favourable. With the passage of time, however, Dr Home agreed that the plaintiff's problem became more and more entrenched to the point where he simply had no motivation to help himself.
Injuries sustained in accident 64 The medical evidence I have reviewed shows the plaintiff's injuries were twofold. In the first place there was the physical injury which all the medical experts diagnosed as a soft tissue injury to the cervical and thoracic spine. The second consequence of the accident was the alleged psychiatric disorder of abnormal illness behaviour and the extent to which this was involuntary or the product of conscious exaggeration.
Physical injury 65 I do not believe the plaintiff's physical injury would have constituted a major barrier to his return to work or participation in a rehabilitation programme in March 2000. The preponderance of the medical evidence was to the effect that the injury was minor and that the plaintiff's
(Page 30)
symptoms were out of all proportion to what might normally have been expected from such an injury. 66 Dr Soni Narula expressed difficulty in reconciling the plaintiff's symptoms with his clinical findings. He did say, however, that he believed the plaintiff's ongoing physical symptoms adversely affected the prospects of his return to his pre-accident employment. He also expressed the view that the prospects for the plaintiff's working future were uncertain but that he should be able to return to light work which did not involve bending, lifting or maintaining sustained postures. 67 Dr Goodheart believed the plaintiff's physical condition totally precluded him from returning to work as an aircraft maintenance engineer and Mr Lee believed the plaintiff had no present or future working capacity. I do accept there was some underlying physical condition producing an array of symptoms which, as I have said, cannot, on the medical evidence, be reconciled with the injury. The other medical witnesses, whose evidence I have referred to elsewhere in this judgment, were all of the view that the physical injuries were mild in nature and could not account for the array or severity of the symptoms displayed by the plaintiff. I am not prepared to find that the physical injury alone adversely affected the plaintiff's capacity to return to work or participate in a course of rehabilitation. Given the conflicts in the medical evidence I am also not prepared to find that, even if the plaintiff had undergone successful rehabilitation, his physical injury would have precluded him from returning to his pre-accident employment. I find the physical injuries played no significant part in the plaintiff's capacity either to undergo rehabilitation at an early stage or return to the work force after rehabilitation.
Psychiatric disorder 68 I accept that the plaintiff suffered, and continues to suffer from, a recognisable psychiatric illness as a consequence of his accident. The nature of that illness was described by Dr Ng as a major depressive disorder in partial remission and by Dr Teraci as an adjustment disorder. The variation in the terms used is not significant. The question I have to decide is whether the abnormal illness syndrome is entirely consciously contrived, in which case the plaintiff's claim for damages must fall away, or is a product of involuntary psychological factors, or possibly, a mix of involuntary factors and deliberate exaggeration. 69 Falling between the position taken by Dr Rosenthal, whose evidence, as I indicated earlier, covers the one extreme of deliberate malingering, to
(Page 31)
that of the psychiatrist, Dr Ng, who favoured the other extreme of a completely involuntary and genuine perception of pain associated with psychological factors, the preponderance of the medical evidence raises the more probable inference of a strong element of conscious exaggeration. This was certainly the view of Dr Teraci whose evidence I have already covered in detail. It was also the view of Dr Connaughton who said in his reports dated 8 August 2000 and 27 May 2005 that the plaintiff's presentation "is similar to a parody of someone who may have fallen over 2-3 days earlier, rather than someone who had a fall 18 months ago." Dr Connaughton's view that the plaintiff's overall presentation was not medically explicable or logical but rather reflective of his claim for compensation appears to have been shared by Dr Holme whom, as I said earlier, believed there was a conscious motivational factor behind the plaintiff's presentation of pain with an element of deliberate exaggeration and embellishment of his condition. 70 Drs Harper and Salmon believed the plaintiff's symptoms were entirely involuntary and their evidence in this respect must be put alongside that of the plaintiff's psychiatrist, Dr Ng. 71 Counsel for the plaintiff submitted that, in considering this issue, it was relevant to take into account the fact that the plaintiff had a secure and rewarding position with the defendant following a disappointing and frustrating beginning to his working career in Australia. It was suggested by counsel that the plaintiff was unlikely to jeopardise all he had gained, and all he stood to gain, by deliberately contriving to portray himself as being injured to the extent that he was unable to work at all. I do not think it helps to speculate on the question of motive. Whilst there is some weight in counsel's submission I should also highlight Dr Connaughton's view that the motivation may have been connected with the plaintiff's claim for compensation. 72 As I said at the outset I believe the preponderance of the medical evidence favours a finding of a genuine psychological disorder containing a significant element of conscious exaggeration. I have come to this conclusion, not only because I was favourably impressed by the evidence of Dr Terace on this point, but, equally as important, by the inconsistencies described by the other medical practitioners in the plaintiff's presentation and the explanations he gave them for his condition. 73 Consistently with the medical evidence I am unable to apportion the degree of conscious exaggeration to the plaintiff's overall condition. I do
(Page 32)
not really believe that will matter. In the light of my finding that the plaintiff's abnormal illness behaviour is, at least in part, genuine and involuntary and was a direct consequence of the accident, the plaintiff is entitled to compensation subject to the issue of mitigation of damages.
The failure to mitigate 74 The plaintiff has a duty to mitigate his loss and the onus of establishing a failure to mitigate rests with the defendant. Watts v Rake (1960) 108 CLR 159 per Dixon CJ. The defendant has submitted that the plaintiff failed to mitigate his loss by refusing to undertake rehabilitation when he was ordered to do so in March 2000 by the Conciliation and Review Directorate. It has also been pleaded by the defendant that the plaintiff failed in his duty by unreasonably refusing to participate in rehabilitation.
Estoppel 75 Evidence was led that on 17 August 1999 the plaintiff and defendant became involved in proceedings in the Conciliation and Review Directorate when the employer sought an order under s 60 of the Workers' Compensation and Injury Management Act that the plaintiff's weekly payments be discontinued on the ground that he had refused to participate in vocational rehabilitation and that such rehabilitation would have assisted him to return to his pre-accident employment. Section 157 of the Act authorised a dispute resolution body at any time to require a worker who was incapacitated to undergo rehabilitation. On 14 March 2000 Review Officer Brash made a decision that, rather than suspend the plaintiff's weekly payments, he should undergo vocational rehabilitation pursuant to s 157 of the Act. Steps were taken to secure the plaintiff's cooperation but he failed to comply with the order. The matter was brought on again for hearing before the Directorate on 12 October 2000 when the plaintiff was represented. On that occasion the Directorate certified in accordance with s 72(2) of the Act that the plaintiff had refused to undergo rehabilitation in compliance with the order made and as a consequence his entitlement to weekly payments of compensation were suspended from that date. |