Jabarkhail v TAC
[2023] VCC 2299
•12 December 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-21-03327
| KHYLINOOR JABARKHAIL | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE MAGEE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 and 29 June 2023 | |
DATE OF JUDGMENT: | 12 December 2023 | |
CASE MAY BE CITED AS: | Jabarkhail v TAC | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 2299 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Serious injury application – claims under s93(17)(a) and s93(17)(c) – plaintiff’s credit
Legislation Cited: Transport Accident Act 1986; s93(17)
Cases citedHumphries and Anor v Poljak [1992] 2 VR 129; Mobilio v Balliotis [1998] 3 VR 833; Richards v Wylie [2000] VSCA 50; Transport Accident Commission v Kamel [2011] VSCA 110; Dordev v Cowan and Ors [2006] VSCA 254; Petrovic v Victorian WorkCover Authority [2018] VSCA 243; Popal v Transport Accident Commission [2023] VSCA 222; Zhang v Joy Foods Australia Pty Ltd [2016] VSCA 199; Woolworths Ltd v Warfe [2013] VSCA 22; Ifka v Shahin Enterprises Pty Ltd [2014] VSCA 8; Siddel-Whipp v Transport Accident Commission [2020] VSCA 109; Noori v Topaz Fine Foods Pty Ltd [2018] VSCA 323
Judgment:Application dismissed
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R McGarvie KC with Mr T Nathanielsz | Zaparas Lawyers |
| For the Defendant | Ms S Manova | Lander and Rogers |
HER HONOUR:
What is this case about?
1This is a serious injury application issued by the plaintiff, Khylinoor Jabarkhail, (“the plaintiff”) pursuant to s93(4)(d) of the Transport Accident Act 1986 (“the Act”) in relation to a transport accident which occurred on 5 July 2018 (‘the accident”).
2The plaintiff relied upon the following injuries:
(a) injury to his lumbar and cervical spine (“the spine”) under s93(17)(a); and
(b) a mental behavioural disturbance or disorder specifically Post-Traumatic Stress Disorder (“PTSD”), major depressive disorder and somatic symptom disorder under s93(17)(c).
3At the hearing of this application, Mr Richard McGarvie KC and Mr Tristan Nathanielsz of Counsel appeared on behalf of the plaintiff, and Ms Sasha Manova of Counsel appeared on behalf of the Transport Accident Commission (“TAC”).
Legal principles
4The legal principles in this proceeding are not in dispute.
5The well-known comments in Humphries and Anor v Poljak[1] apply.
[1][1992] 2 VR 129
6In relation to the physical claim under s93(17)(a), the plaintiff must identify the compensable injury suffered in the accident, the impairment from the compensable injury, and then establish that the impairment consequences from that compensable injury are “serious” in the sense of being more than significant or marked, or at least very considerable.
7In relation to the claim under s93(17)(c), the plaintiff must establish as a matter of probability that the claimed injury is a “severe long-term mental or severe long-term behavioural disturbance or disorder”.
8In Mobilio v Balliotis,[2] the Full Court found that the word “severe” in s93(17)(c) is higher than “serious”. Brooking JA stated:
“Without suggesting the use of any particular adjective to mark the distinction, I would say that ‘severe’ is used in the definition as a stronger word than ‘serious’.”[3]
[2][1998] 3 VR 833 at 846
[3]Ibid
9In conformity with the principles set out in Richards v Wylie,[4] Kyrou AJA stated in Transport Accident Commission v Kamel:[5]
“The definition of ‘serious injury’ in s.93 (17) of the Act intends to maintain a division between injuries with physical consequences, which fall within paragraph (a) of the definition, and injuries with mental consequences, which fall within paragraph (c) of the definition. The inquiry that must be made under paragraph (a) focuses attention on whether the injury has produced an organic impairment or loss of a body function and whether, having regard to its consequences, that impairment or loss is serious and long-term. Where an impairment or loss of a body function is produced as a consequence of a mental disturbance or disorder, that impairment must be considered under paragraph (c) rather than under paragraph (a). Where the impairment of a body function is the product of both organic and mental conditions, it will not fall within paragraph (a) unless it is predominantly the product of the organic condition.
The ‘textual distinction’ between the physical and mental consequences of an injury that is maintained by the definition of ‘serious injury’ in s 93(17) of the Act does not preclude a mental or behavioural disturbance or disorder from being taken into account in determining the seriousness of an impairment or loss of a body function that is held to fall within paragraph (a) of the definition.”[6]
[4][2000] VSCA 50
[5]Ibid at [65]-[66]
[6]Ibid at [65]-[66]
10The onus is on the plaintiff to establish that he satisfies either the physical and/or psychiatric test.
11For the reasons that follow, I have determined that the plaintiff has not satisfied his onus of establishing that the long-term impairment consequences of his spinal injury could be fairly described as more than “significant” or “marked” and “at least very considerable” when compared with the range of possible impairments.
12In addition, I have determined that the plaintiff has not satisfied his onus of establishing that the long-term consequences of any accident-related psychiatric condition or disorder could be fairly described as severe.
13My reasons are as follows.
What are the issues in dispute?
14The defendant did not dispute that the accident occurred.
15The defendant accepted that, in the accident, the plaintiff suffered an initial soft tissue injury to his spine which required conservative treatment.
16The defendant identified the following issues (not in any order):
· whether there is an ongoing organic injury;
· disentanglement of the consequences of any organic injury and any psychological or psychiatric injury;
· severity of any psychiatric condition;
· credit.
Background
17The plaintiff was born in December 1992 in Afghanistan and is now almost 31 years old.
18He is married with three young children aged 6, 3, and 18 months.[7]
[7] Transcript (“T”) 94, Lines (“L”) 3-23
19He completed only a few years of schooling in Afghanistan.[8]
[8] Plaintiff Exhibit P1, Plaintiff’s Amended Court Book (“PACB”) 6
20He arrived in Australia in 2016.[9]
[9] Plaintiff Exhibit P1, PACB 6
21It is difficult to precisely ascertain the plaintiff’s pre-accident work.
22In his first affidavit, he said that after his arrival in Australia he worked various manual jobs without providing any description of the jobs.
23Approximately three months before the accident, he commenced at the Wagstaff Abattoir in Cranbourne North in April 2018,[10] as a general hand undertaking manual work.
[10] Plaintiff Exhibit P1, PACB 6
24No description of his work duties were contained in any of the plaintiff’s affidavits.
The hearing
25The hearing proceeded in the usual way.
26The plaintiff tendered three affidavits affirmed by him on 20 March 2020, 10 June 2022, and 14 June 2023.
27The plaintiff also tendered an affidavit from his wife, Ms Halima Jabarkhail, affirmed on 14 June 2023, and radiology reports, reports from treaters, medico-legal reports and clinical records.
28The defendant tendered medico-legal reports, records from Ambulance Victoria, additional radiology and surveillance footage.
29The defendant provided the Court with a written summary of their closing submissions.
30The plaintiff was the only witness to give viva voce evidence. He gave his evidence entirely through an accredited interpreter.
31The plaintiff was robustly and politely cross-examined about several topics, including the claimed consequences of the alleged injuries.
32The thrust of the cross-examination was that the consequences were not as serious as the plaintiff suggested in his affidavits, or in his viva voce evidence to the Court or in his presentation to doctors.
33The plaintiff’s credit and reliability were challenged in cross-examination.
34I have considered all the tendered evidence, the plaintiff’s viva voce evidence, the surveillance material and the oral and written submissions of the parties, but I shall only refer to the materials to the extent necessary in these reasons.
The accident
35At approximately 4.30am on 5 July 2018, the plaintiff was on his way to work at Wagstaff Abattoir and was driving along Thompson Road, Cranbourne North. He was stationary, waiting to turn right into the staff carpark, when he was hit from behind by another car.[11]
[11] Plaintiff Exhibit P1, PACB 186
36The plaintiff was taken by ambulance to the Emergency Department of the Dandenong Hospital.
37Whilst in hospital, imaging of his lumbar spine, sacrum/coccyx, left hip, right hip and pelvis was undertaken which revealed no acute fractures.[12]
[12] Plaintiff Exhibit P7, Defendant’s Court Book (“DCB”) 52
38The plaintiff says he was discharged after “24 hours”.[13] The hospital records in evidence do not confirm the date or time of discharge.
[13] Plaintiff Exhibit P1, PACB 7
39Since the accident, the plaintiff says he has had low back pain radiating into both legs and neck pain. He says the pain is constant but fluctuating depending on his activities.
40The plaintiff says he has suffered depression and anxiety because of the accident.
Treatment of the plaintiff’s neck and lumbar spine
41The plaintiff commenced physiotherapy with Ms Deanne Barnard, physiotherapist, on 25 July 2018.[14] He attended physiotherapy on a weekly or fortnightly basis depending on pain levels.[15] He ceased attending when funding was withdrawn.[16] It is unclear when this occurred.
[14] Plaintiff Exhibit P9, PACB 193
[15] Plaintiff Exhibit P1, PACB 9
[16] Plaintiff Exhibit P9, PACB 246
42The plaintiff participated in hydrotherapy, but it is unclear exactly when this started. According to Ms Barnard, he was attending hydrotherapy in July/August 2018 and then ceased in December 2019.[17] He recommenced hydrotherapy for a limited period in mid-2022.[18] By June 2023, he had again ceased this treatment.[19]
[17] Plaintiff Exhibit P1, PACB 9
[18] Plaintiff Exhibit P1, PACB 15
[19] Plaintiff Exhibit P1, PACB 20
43The plaintiff attended Mr Craig Timms (treating neurosurgeon) a total of four times (29 January 2019, 7 March 2019, 21 May 2019 and 19 June 2019).[20]
[20] Plaintiff Exhibit P11, PACB 198-203
44Mr Timms recommended conservative treatment and not surgical intervention.[21]
[21] Plaintiff Exhibit P11, PACB 198-203
45In about February 2019, the plaintiff commenced a Pain Management Program (PMP) at the Victorian Rehabilitation Centre (“VRC”) which he apparently did not complete as he needed further psychological treatment.[22]
[22] Plaintiff Exhibit P1, PACB 8
46As part of the PMP, he attended three occupational therapy sessions, four physiotherapy sessions and three hydrotherapy sessions.[23]
[23] Plaintiff Exhibit P10, PACB 194
47During the PMP, it was recorded that the plaintiff referred to “multiple unspecified social and psychological stressors which impacted upon his engagement in physical and occupational rehabilitation.”[24]
[24] Plaintiff Exhibit P10, PACB 194
48The PMP ceased in order to allow the plaintiff to undergo psychological treatment, after which he was to arrange to recommence the PMP.[25]
[25] Plaintiff Exhibit P10, PACB 194
49There is no evidence that the plaintiff re-engaged in the PMP.
50In June 2019, the plaintiff had a CT-guided epidural injection into his lumbar spine – which he said provided only a few days’ improvement in pain.[26]
[26] Plaintiff Exhibit P1, PACB 8 and Plaintiff Exhibit P11, PACB 202
51The plaintiff attended Dr Gavin Weekes at Precision Brain, Spine and Pain (“Precision”) on 12 August 2021, 7 September 2021, 24 March 2022, 11 May 2022, 25 May 2022 and 5 September 2022 for review and pain management.[27] He has not seen Dr Weekes since September 2022.
[27] Plaintiff Exhibit P16
52On 11 May 2022, he had a left-sided L3 to L5 medial branch block plus left sacroiliac joint block performed by Dr Weekes.[28]
[28] Plaintiff Exhibit P6, PACB 266
53His current treatment regime for his spine appears to be fortnightly attendance on his general practitioner for prescriptions.
Radiology
54The following radiology was tendered:
· 5 July 2018: X-ray pelvis[29] - no findings included in the report.
· 12 July 2018: CT lumbosacral spine without contrast[30] - reported to show no fracture, mild non-compressive disc bulges with mild sclerosis around the sacroiliac joints which may represent mild mechanical changes.
· 16 July 2018: MRI lumbar spine[31]- reported to show degenerative changes are seen throughout with disc building most notably at L4-5, L5-S1. There was subtle contact of the existing L5 nerve roots in their far lateral recesses with deformation on the right but no true impingement. No sacroiliitis changes but sacroiliac degenerative changes seen, mild.
· 7 August 2018: CT cervical spine[32] - reported to reveal straightening of the normal cervical lordosis, which may be on the basis of pain, positioning or muscle spasm, alone or in combination. No fracture demonstrated.
· 7 August 2018: X-ray lumbosacral spine[33] - reported to show attenuation of the lumbar lordotic curvature likely anterior annular calcification at L4-5. Normal vertebral body height and alignment. Normal alignment on the flexion and extension views. The pedicles and posterior elements are within normal limits. No abnormal paravertebral soft tissue component. No bony destructive lesion. Normal visualised ribs. Normal SI joints.
· 7 August 2018: MRI lumbar spine[34] - reported to reveal diffuse disc bulges at L3-4, L4-5 and L5-S1 causing mild focal central canal stenosis. Overall, no significant interval change in findings to the previous MRI study.
[29] Defendant Exhibit 5, PACB 254
[30] Plaintiff Exhibit P17, PACB 256-257
[31] Plaintiff Exhibit P17, PACB 258-259
[32] Plaintiff Exhibit P17, PACB 260
[33] Plaintiff Exhibit P17, PACB 263
[34] Plaintiff Exhibit P17, PACB 264-265
55The parties did not tender the report of a bone scan which was carried out in February 2019, referred to by the plaintiff in his affidavit of 20 March 2020.[35]
[35] Plaintiff Exhibit P1, PACB 8 [9]
56Mr Timms referred to the bone scan in his report dated 21 May 2019 as showing:
“no major uptake in the spinal regions which would account for any major abnormalities, fractures, or hot spots.”[36]
[36] Plaintiff Exhibit P11, PACB 198
Psychological/psychiatric treatment
57The plaintiff attended Ms Scoullar, a psychologist, for counselling between 8 March 2019 and 19 September 2019.
58On 30 August 2019, the plaintiff commenced attending Dr Vadasseri, psychiatrist, monthly and continues to attend Dr Vadasseri.
59The plaintiff said that Dr Kennedy prescribed an antidepressant, Duloxetine, in August 2018. She subsequently changed the antidepressant to Effexor and altered the dosage.
60The plaintiff says Dr Hamza increased the dose of Effexor in May 2019.
Medication
61According to the plaintiff’s affidavit sworn on 14 June 2023,[37] he continues to take the following medication;
· Gabapentin, 700 milligrams a day
· Effexor, 225 milligrams a day
· Mirtazapine, 15 milligrams at night
· Catapres at night
· Osteomol, 665-milligram tablets, four times per day (up to six times per day if the pain is very bad).
[37]Plaintiff Exhibit P1, PACB 19
The medical evidence
Plaintiff’s treaters
Ambulance Victoria
62Ambulance officers attended the accident scene and noted that the plaintiff was very difficult to understand. Mr Jabarkhail’s co-workers attempted to translate but they all had very poor English.
63Despite these difficulties, the ambulance officers recorded “nil LOC” and recorded no altered conscious state.
64In addition, the ambulance officers observed the plaintiff being able to answer his telephone and he:
“spoke well seemed alert and oriented. once phone hungup pt when back to groaning constantly” [sic][38]
[38]Defendant Exhibit D4, PACB 186–187
Dandenong Hospital
65The Discharge Summary from Monash Emergency Monash Health Dandenong recorded that the plaintiff complained of low back pain at the accident scene, he denied having pain in his neck or head, he was alert and there were no signs of a head strike.[39]
[39] Plaintiff Exhibit P7, DCB 51-52
66The plaintiff was discharged with a diagnosis of “sprain/strain of lower back”.
Casey Emergency Department
67The plaintiff attended the Emergency Department of Casey Hospital on 12 July 2018, complaining of increasing lumbar back pain radiating down left leg.
68The Emergency Department notes recorded that the plaintiff’s neck pain had resolved.[40] On examination, no weakness or sensory changes were identified.
[40] Plaintiff Exhibit P8, PACB 183
69The plaintiff said that he initially had some left leg tingling after the accident, but it had resolved.
70The plaintiff was discharged with some analgesia and advised to attend his general practitioner if necessary.
Dr Said Mirranay, general practitioner
71The plaintiff tendered two reports from Dr Mirranay dated 10 March 2020 and 29 June 2022.[41]
[41] Plaintiff Exhibit P14, PACB 220
72Dr Mirranay has been the plaintiff’s long-term general practitioner since October 2016.[42]
[42] Plaintiff Exhibit P14, PACB 220
73The plaintiff said that he attended Dr Mirranay on 9 July 2018, and received prescriptions for Voltaren and Panadeine Forte.[43] This was not confirmed by Dr Mirranay.
[43] Plaintiff Exhibit P1, PACB 7
74In his first report, Dr Mirranay said the plaintiff was a fit young man with no prior medical conditions before the accident.
75Dr Mirranay diagnosed lumbar disc bulges at L4-L5 and L5-S1 with no nerve impingement, cervical disc bulge at C4-C5 with mild nerve impingement, chronic left elbow pain, left meniscal tear, pain and anxiety, and depression, caused by the accident.
76The left meniscal tear is not relevant to this application.
77Dr Mirranay noted the plaintiff did not require surgery and he was under the care of a pain management specialist, a psychiatrist, and a psychologist, and that such treatment should continue.[44]
[44] Plaintiff Exhibit P14, PACB 221
78Dr Mirranay concluded the plaintiff was not capable of returning to work for the foreseeable future “due to his physical and mental status”.[45]
[45] Plaintiff Exhibit P14, PACB 221
79In the second report, Dr Mirranay confirmed the plaintiff remained on anti-depressants and high-dose neuropathic analgesics, and that the plaintiff had attended him for regular review and was continuing with physiotherapy, psychological counselling and review and treatment through Dr Gavin Weekes.[46]
[46] Plaintiff Exhibit P14, PACB 223
80Dr Mirranay reported that the plaintiff had undergone a sacroiliac joint nerve block which provided “mild improvement” for his leg and back pain.
81Dr Mirranay confirmed his earlier diagnosis of chronic lumbar disc disease with back pain, cervical disc disease causing chronic neck pain and left knee pain due to a meniscal tear. He also confirmed the plaintiff continued to experience anxiety and depressed mood.
82Dr Mirranay considered that the plaintiff’s spinal condition by itself prevented him from returning to his pre-injury duties, and that he would remain incapacitated for the foreseeable future.[47]
[47] Plaintiff Exhibit P14, PACB 224
83In terms of suitable employment, Dr Mirranay reported the plaintiff would not be able to work part-time or full-time for the foreseeable future due to his chronic spinal pain.
84This opinion was expressed in the context of the plaintiff’s limited employment history, limited English language skills and limited education, as well as his ongoing mental health issues, all of which would also cause difficulty in him returning to the workforce.[48]
[48] Plaintiff Exhibit P14, PACB 225
85Dr Mirranay commented on the March surveillance footage in this report – his comments are set out at paragraphs 276-277 below.
Ms Deanne Barnard, physiotherapist
86The plaintiff tendered two reports from Ms Barnard dated 28 August 2018 and 9 June 2023.[49]
[49]Plaintiff Exhibit P9, PACB 193; PACB 245-253
87The August 2018 document was addressed “To Whom it May Concern”. It is unclear who requested the report or why it was commissioned.[50]
[50] Plaintiff Exhibit P9, PACB 193
88In August 2018, Ms Barnard confirmed that the plaintiff was complaining of pain in his head, neck, shoulders, thoracic spine, and lumbar spine with referred pain down the leg. In addition, the plaintiff complained of pain in both of his knees.
89The plaintiff attended Ms Barnard with his wife, who did most of the translation.
90The plaintiff’s wife told Ms Barnard that the plaintiff was experiencing headaches around his eyes and the back of his head every day, and lower back pain located mostly on the left-hand side travelling down the leg into his heel.
91Ms Barnard treated the plaintiff with “very gentle soft tissue work”.
92She noted that the plaintiff could not handle pressure through any part of his body, and this made treating him quite difficult.
93She tried several treatments, including “inferential treatment”,[51] which was unhelpful. She offered dry needling treatment, but the plaintiff refused to have this treatment.
[51]Ms Barnard did not explain what she meant by this term
94Ms Barnard noted the plaintiff had commenced hydrotherapy, but it was too painful to do exercises in the pool due to the resistance of the water.[52]
[52] Plaintiff Exhibit P9, PACB 193
95Ms Barnard offered no explanation for the plaintiff’s wide-ranging complaints of pain or whether there was a physical explanation as to why he was unable to participate in hydrotherapy.
96In her second report, Ms Barnard noted that it was difficult collecting subjective evidence, and consequently objective evidence, from the plaintiff because of his extremely limited English language skills.[53]
[53] Plaintiff Exhibit P9, PACB 245
97The plaintiff presented with minimal movement in his cervical and lumbar spine.[54]
[54] Plaintiff Exhibit P9, PACB 246
98According to Ms Barnard, the plaintiff struggled with hydrotherapy and eventually stopped. Therefore, his treatment was limited to physiotherapy. She commented he struggled initially with any pressure, but did improve over time until funding was ceased (she does not say when).[55]
[55] Plaintiff Exhibit P9, PACB 246
99Ms Barnard concluded it was unlikely that the plaintiff would get any better, given the time which had elapsed since the accident and his lack of improvement.
100Ms Barnard considered it was likely the injuries would worsen and that the plaintiff may potentially require surgery to his spine if the L5 nerve continued to play a “big part” in his pain and function.[56]
[56] Plaintiff Exhibit P9, PACB 248
101It does not appear that Ms Barnard is qualified to comment on potential surgery.
102When she last saw the plaintiff, Ms Barnard considered he was unable to return to his pre-injury work due to the physical demands of the role, and that he did not have capacity for suitable employment.[57]
[57] Plaintiff Exhibit P9, PACB 250
Dr Samantha Kennedy, rehabilitation physician - Victorian Rehabilitation Centre (“VRC”)
103The plaintiff tendered a report from Dr Samantha Kennedy dated 12 July 2019.[58]
[58] Plaintiff Exhibit P12, PACB 205-206
104Dr Kennedy first examined the plaintiff on 30 August 2018 at the VRC on referral from his general practitioner.
105He subsequently attended the VRC on 14 March 2019 and 30 April 2019.[59]
[59] Plaintiff Exhibit P12, PACB 205
106Dr Kennedy reported the plaintiff complained of “widespread” pain and ongoing psychological distress symptoms.[60]
[60] Plaintiff Exhibit P12, PACB 206
107Dr Kennedy noted the plaintiff was “extremely pain focussed and was reluctant to partake in any daily exercise program.”[61]
[61] Plaintiff Exhibit P12, PACB 206
108Dr Kennedy noted the plaintiff was very limited in his mobility and his ability to do daily tasks because of pain. She said he had ongoing fear avoidance beliefs/behaviours and difficulty adopting active strategies for pain management.
109Consequently, Dr Kennedy was of the view that the plaintiff was not able to return to work. She believed there was the possibility of further recovery, but said it would depend to a large extent on stabilisation of his psychological state as well as a reduction of his fear of pain on movement.[62]
[62]Plaintiff Exhibit P12, PACB 206
110Dr Kennedy has not seen the plaintiff since April 2019. Her opinion is now dated and is of little assistance to the Court.
Dr Hamza, rehabilitation consultant – Rehabilitation Consultant Melbourne Pain Group
111Dr Kennedy referred the plaintiff to Dr Safa Hamza in November 2018.[63]
[63] Plaintiff Exhibit P12, PACB 206
112No reports from Dr Hamza were tendered, so there is no medical evidence as to the nature and duration of any treatment provided.[64]
[64]Dr Justin Lewis was provided with a report of Dr Hamza dated 30 September 2019 (PACB 111)
113According to Dr Kennedy, the plaintiff attended Dr Hamza in May 2019.[65]
[65] Plaintiff Exhibit P12, PACB 206
114In his first affidavit, (March 2020) the plaintiff said he continued to see Dr Hamza for pain management and prescriptions.[66]
[66] Plaintiff Exhibit P1, PACB 9
115Dr Hamza is not mentioned in any later affidavit. It is not clear when the plaintiff ceased attending Dr Hamza.
Mr Craig Timms, neurosurgeon
116The plaintiff tendered three reports from Mr Craig Timms dated 21 May 2019, 6 June 2019, and 26 June 2022.[67]
[67]Plaintiff Exhibit P11, PACB 198, PACB 199 -201, 202-203
117Mr Timms’ first report was a letter addressed to the general practitioner in relation to an examination which took place on 21 May 2019.[68]
[68] Plaintiff Exhibit P11, PACB 198
118The plaintiff reported he was struggling to walk, he was experiencing increasing pain in his left leg which extended to his toes, and neck pain which extended down his left arm.
119Mr Timms noted that the plaintiff was limping. Mr Timms observed restricted strength in the lower limbs which was due to knee pain.[69]
[69] Plaintiff Exhibit P11, PACB 198-200
120Mr Timms reviewed the imaging and confirmed that it did not identify any major neural compression of the cervical spine.
121It was his opinion that the plaintiff suffered unspecified discal injuries to L4-5 and L5-S1.[70]
[70] Plaintiff Exhibit P11, PACB 198
122Mr Timms recommended conservative treatment, namely cortisone injections, massage, physiotherapy, and hydrotherapy.[71]
[71] Plaintiff Exhibit P11, PACB 198
123In a report to the plaintiff’s solicitors dated 6 June 2019,[72] Mr Timms confirmed that he reviewed the plaintiff on 7 March 2019 and 21 May 2019.
[72] Plaintiff Exhibit P11, PACB 199
124Mr Timms was provided with a history of persistent pain in the neck, arms, legs, and lower back, as well as severe headaches since the accident.
125The plaintiff said that he felt as if his legs would “go to sleep”,[73] and that he had difficulty controlling his bowel and bladder function when the pain was severe.[74]
[73] Plaintiff Exhibit P11, PACB 199
[74] Plaintiff Exhibit P11, PACB 199
126Mr Timms recorded significant pain and loss of range of movement in the left knee (this injury is unrelated to the current claim).[75]
[75] Plaintiff Exhibit P11, PACB 199
127As at March 2019, Mr Timms said he could not identify any major neural compression of the lumbar spine. Mr Timms recorded normal muscle tone, sensation and reflexes in the upper and lower body, and normal movement in the cervical spine.
128In May 2019, the plaintiff presented with a limp with a decreased straight leg raise.
129Mr Timms confirmed a diagnosis of disc injuries to the lumbar spine at L4-5 and L5-S1.[76]
[76] Plaintiff Exhibit P11, PACB 200
130Mr Timms opined that the plaintiff’s quality of life had deteriorated, and that he remained entirely incapacitated since the accident. He said he was likely to stabilise by July/August 2019, but expressed the further opinion that if his symptoms did not dramatically improve by July/August 2019, it was likely that he would remain permanently incapacitated.[77]
[77] Plaintiff Exhibit P11, PACB 201
131Mr Timms continued to recommend conservative treatment comprising pain management, physiotherapy, hydrotherapy, massage, acupuncture, osteopathy and myotherapy. He said the plaintiff was not a candidate for neurosurgical intervention.
132Mr Timms’ last examination of the plaintiff was on 19 June 2019.[78]
[78] Plaintiff Exhibit P11, PACB 202
133By that time, the plaintiff had undergone a cortisone injection to his lumbar spine which had not improved his arm or leg symptoms.[79]
[79] Plaintiff Exhibit P11, PACB 202
134Mr Timms confirmed his earlier diagnosis and his previous treatment suggestions, including attendance at a pain management program. He considered the symptoms were likely to remain chronic.[80]He confirmed his opinion that the plaintiff remained incapacitated for pre-injury and alternative duties.[81]
[80] Plaintiff Exhibit P11, PACB 203
[81] Plaintiff Exhibit P11, PACB 203
135Mr Timms has not seen the plaintiff for over four years. His opinions are now dated.
Dr Gavin Weekes, pain specialist - Precision
136The plaintiff tendered four reports from Dr Weekes dated 21 April 2022, 29 April 2022, 1 July 2022 and 5 September 2022.[82]
[82] Plaintiff Exhibit P16, PACB 237-244
137The first and fourth reports were letters addressed to the general practitioner, and the second and third reports were addressed to the plaintiff’s solicitors.
138Dr Weekes first saw the plaintiff on 12 August 2021 on referral from his general practitioner. Mrs Jabarkhail interpreted at the initial appointment.[83]
[83] Plaintiff Exhibit P16, PACB 238
139Dr Weekes reported that upon his initial examination, the plaintiff was “severely deconditioned”,[84] and that he had undergone extensive physiotherapy and attended for pain management and rehabilitation.
[84] Plaintiff Exhibit P16, PACB 239
140Dr Weekes reported that imaging revealed some degenerative disc disease, but no nerve root compression and no evidence of instability upon flexion and extension of the lumbar spine.[85]
[85] Plaintiff Exhibit P16, PACB 239
141Dr Weekes diagnosed lumbosacral spondylosis[86] based on the radiological imaging and his own observations of severely restricted flexion and extension of the lumbar spine, together with tenderness over the left lower lumbar facet joints and left sacroiliac joints.[87]
[86] Plaintiff Exhibit P16, PACB 239
[87] Plaintiff Exhibit P16, PACB 239
142Dr Weekes considered the plaintiff had no capacity for pre-injury or alternative duties and would remain incapacitated for the foreseeable future solely based on the plaintiff’s lumbar spine. He had not examined the plaintiff’s cervical spine.[88]
[88] Plaintiff Exhibit P16, PACB 240
143Dr Weekes confirmed that he performed a left sided L3 to L5 medial branch block plus left-sided sacroiliac joint block on 11 May 2022.[89]
[89] Plaintiff Exhibit P16, PACB 242
144Dr Weekes re-examined the plaintiff on 25 May 2022, at which time he reported a 50 per cent reduction in his pain.[90]
[90] Plaintiff Exhibit P16, PACB 242
145Dr Weekes commented on the March surveillance footage in his report – his comments are set out at paragraphs 278-284 of this Judgment.
146In the final report dated 5 September 2022, Dr Weekes said that he had not seen the plaintiff between May 2022 and September 2022.[91]
[91] Plaintiff Exhibit P16, PACB 244
147In September 2022, Dr Weekes recommended a radiofrequency denervation and indicated that he was left with the impression that the plaintiff was keen to proceed with this treatment.[92]
[92] Plaintiff Exhibit P16, PACB 244
148It was confirmed during the proceeding that the plaintiff had decided not to undergo this procedure.[93]
[93] T23, L7-24
Ms Anne Scoullar, psychologist
149The plaintiff tendered two reports from Ms Scoullar dated 20 March 2020 and 30 June 2022.[94]
[94]Plaintiff Exhibit 15, PACB 227-234; PACB 235-236
150In her first report, Ms Scoullar recorded that the plaintiff presented with a flat effect, low mood, and fear of doing anything that may aggravate his injuries.[95]
[95] Plaintiff Exhibit 15, PACB 228
151The plaintiff did not engage with her, and he kept his head down, did not make eye contact, and shuffled throughout the sessions. He presented unshaven and his hair was not combed.[96]
[96] Plaintiff Exhibit 15, PACB 228
152Initially, Ms Scoullar was unable to obtain any details about the accident from the plaintiff as he became distressed and reported that talking about the accident increased his symptoms, fear, and headaches.[97]
[97] Plaintiff Exhibit 15, PACB 228
153An interpreter was apparently present at the sessions.
154The plaintiff told Ms Scoullar that he considered the accident was life-threatening and reported ongoing flashbacks, nightmares, and anxiety.[98]
[98] Plaintiff Exhibit P15, PACB 229
155Ms Scoullar said the plaintiff made little progress during his treatment, and was unable to follow up on suggestions for additional treatment such as physiotherapy and pain specialist referrals.
156No explanation was provided as to why the plaintiff was not able to follow up on those recommendations.
157Ms Scoullar diagnosed Somatic Symptom Disorder, Post-Traumatic Stress Disorder (“PTSD”) and Major Depressive Disorder, and considered that the plaintiff was unlikely to resume work given his levels of distress and limited improvement.[99]
[99] Plaintiff Exhibit P15, PACB 229-231
158Ms Scoullar considered that the plaintiff needed further treatment, but his severe distress was a barrier to such treatment.[100]
[100]Plaintiff Exhibit P15, PACB 231
159Ms Scoullar’s second report, dated 30 June 2022, related to the surveillance footage, and her comments are set out in further detail at paragraphs 285-287 below.
Dr Srirekha Vadasseri, psychiatrist
160The plaintiff tendered four reports from Dr Vadasseri dated 14 October 2019, 30 June 2022, 17 August 2022, and 27 June 2023.[101]
[101] Plaintiff Exhibit PACB 208-209; PACB 212-218; PACB 219; PACB 269-270
161Dr Vadasseri first saw the plaintiff on 30 August 2019, upon request from Dr Safa Hamza.
162Dr Vadasseri noted at the first assessment that the plaintiff reported pain in the left side of his body and low back, as well as headaches, mainly on the left side, as well as a “heaviness in his head and electric shocks in the occipital region”.[102]
[102] Plaintiff Exhibit P13, PACB 213
163Dr Vadasseri has continued to review the plaintiff regularly and prescribed medication.
164The plaintiff told Dr Vadasseri that the accident was a traumatic event which had caused nightmares and flashbacks and left him feeling depressed, angry, and anxious.[103]
[103] Plaintiff Exhibit P13, PACB 213
165Dr Vadasseri diagnosed PTSD and Major Depressive Disorder. She considered the plaintiff was not fit psychiatrically for his pre-injury or alternative duties, and that this was likely to last into the foreseeable future.[104]
[104] Plaintiff Exhibit P13, PACB 216
166In a report dated 30 June 2022, Dr Vadasseri said that she had reviewed a surveillance report – her comments are set out at paragraphs 288-290 of this Judgment.
167In a later report dated 17 August 2022,[105] Dr Vadasseri confirmed receipt of the reports of Associate Professor Mendelson dated 31 May 2022, Dr Tan dated 5 April 2022, Dr Akil dated 21 June 2022 and Dr McCallum dated 1 July 2022.
[105] Plaintiff Exhibit P13, PACB 219
168Dr Vadasseri also confirmed that she had reviewed her clinical records.
169Despite her earlier diagnosis of PTSD and Major Depressive Disorder, Dr Vadasseri said that she would consider a diagnosis of Somatic Symptom Disorder with Predominant Pain.[106]
[106] Plaintiff Exhibit P13, PACB 219
170Dr Vadasseri did not explain why she effectively abandoned her earlier diagnoses.[107]
[107] Plaintiff Exhibit P13, PACB 219
171Then, confusingly, in her report of 27 June 2023, Dr Vadasseri re-adopted her original diagnoses of PTSD, Major Depressive Disorder and added an additional disorder described as Somatic Symptom Disorder with Predominant Pain of moderate severity.[108]
[108] Plaintiff Exhibit P13, PACB 269
172In her most recent report of 27 June 2023, Dr Vadasseri did not set out any treatment plan, details of any medication, or provide any comment as to the plaintiff’s prognosis or work capacity.
Plaintiff’s medico-legal practitioners
Dr Michael Tan, Neurologist
173The plaintiff tendered two reports from Dr Tan dated 16 July 2019 and 5 April 2022.[109]
[109]Plaintiff Exhibit P4, PACB 124-145
174Dr Tan examined the plaintiff on 16 July 2019 (an impairment benefit assessment) and re-examined the plaintiff on 5 April 2022. An interpreter attended both examinations.
175In July 2019, the plaintiff reported back and leg pain, neck and left shoulder pain and headaches. He reported the low back pain was a “7-8/10”[110] in severity and that the pain felt “numb, as if dead”[111] and can be “electricity-like, radiating down his leg”.[112] The plaintiff said the pain occurred in spasms when radiating down the back of his legs, worse on the left but not as severe as the pain within his lower back. He said neck and left shoulder pain caused restricted movement and that he could not turn his neck to the left.[113]He said the pain went from his shoulder down his left arm and described the sensation as “numb, as if dead”.[114] The plaintiff also reported “tingling sensations, as if ants are walking on it”.[115]
[110] Plaintiff Exhibit P4, PACB 127
[111] Plaintiff Exhibit P4, PACB 127
[112]Plaintiff Exhibit P4, PACB 127
[113] Plaintiff Exhibit P4, PACB 127
[114] Plaintiff Exhibit P4, PACB 127
[115] Plaintiff Exhibit P4, PACB 127
176The plaintiff said that he lost consciousness in the accident and did not recall being attended to by the ambulance officers at the accident scene. He said that his first memory after the accident was when he was in the Dandenong Hospital.
177The plaintiff told Dr Tan that he had unbearable daily headaches which he rated at between “7/10”[116] and “4/10”.[117]He described the headaches as being over the bitemporal regions, where it felt as if the bone had been broken. He also described headaches over the right occipital region, where he explained it felt “like a thunderstorm, where it can shoot like lightning”.[118]
[116] Plaintiff Exhibit P4, PACB 127
[117] Plaintiff Exhibit P4, PACB 127
[118] Plaintiff Exhibit P4, PACB 127
178There were no complaints of nausea or photophobia. However, the plaintiff reported significant phonophobia.[119]
[119]A persistent abnormal unwarranted fear of sound
179Dr Tan diagnosed the plaintiff with a chronic pain syndrome with low back pain in the setting of lumbar spondylosis, neck pain, likely cervical whiplash, and post-traumatic headaches.[120]
[120] Plaintiff Exhibit P4, PACB 129
180Dr Tan commented that whilst a mild traumatic brain injury following the accident had been referred to by the plaintiff’s treating medical practitioners, such a head injury would need to be confirmed by the ambulance officers and any Glasgow Coma Scores.
181Dr Tan accepted the plaintiff’s back pain, neck pain and daily headaches were impacting upon his ability to participate in gainful employment.
182Dr Tan opined that the plaintiff’s work capacity would be highly dependent on the functional demands of each job. Dr Tan recommended that careful consideration be undertaken by vocational assessors to identify suitable vocations which took into account the plaintiff’s impairments and activity limitations.
183It was his initial view that the plaintiff required management by a psychiatrist and psychologist and referral for pain management.
184On re-examination in April 2022, Dr Tan was told that the plaintiff’s pain was unchanged from the last examination.[121]
[121] Plaintiff Exhibit P4, PACB 138-139
185Dr Tan later reviewed further documentation, including material from ambulance officers, which included the Glasgow Coma Scores which were taken at the accident scene.
186Having considered the additional material, Dr Tan opined that the plaintiff did not sustain a mild traumatic brain injury in the accident.
187During the examination, Dr Tan noted the plaintiff frequently alternated between sitting and standing.[122]
[122] Plaintiff Exhibit P4, PACB 140
188The plaintiff refused to walk on his heels or tiptoes or squat as he said such actions might aggravate his pain.[123]
[123] Plaintiff Exhibit P4, PACB 140
189Dr Tan recorded the plaintiff’s gait was “antalgic looking” but that the Romberg’s and tandem gait were normal. There was a reduced range of movement in the neck and lumbar spine, palpable tenderness over the cervical and thoracolumbar region, but normal tone and power in the upper and lower limbs, with some reduced flexion in the right elbow (unrelated to the current claim) and some slightly reduced power in hip flexion, which was variable and slightly collapsing. He also recorded all reflexes and pinprick sensations as normal.[124]
[124] Plaintiff Exhibit P4, PACB 140, 143
190Dr Tan noted it was difficult to distinguish an exacerbation of a previous headache disorder from post-traumatic headaches accompanying the musculoskeletal neck injury.[125]
[125] Plaintiff Exhibit P4, PACB 142
191Dr Tan confirmed his diagnosis of chronic pain syndrome with musculoskeletal low back and neck pain.[126]
[126] Plaintiff Exhibit P4, PACB 140
192The plaintiff said that he believed that his pain would need to improve before he could consider returning to work, and that he would only consider working in a meat factory as this was his area of expertise. He said he had no patience for studying or training.[127]
[127] Plaintiff Exhibit P4, PACB 140
193Dr Tan concluded the plaintiff did not have capacity to return to pre-injury duties, and noted that the plaintiff would not consider alternative employment options.
194Dr Tan interpreted the plaintiff’s attitude set out as paragraph 192 above as a “clinical red flag”, as it was his view that most patients would “consider exploring other vocational options which will align with their activity limitations to facilitate their recovery”.[128]
[128] Plaintiff Exhibit P4, PACB 143
195Dr Tan noted that the plaintiff had been diagnosed with various psychological conditions and again recommended psychiatric review.
196Consequently, Dr Tan was unsure whether psychological factors contributed to the plaintiff’s attitude towards work.
197Dr Tan opined that the plaintiff’s musculoskeletal injury to the neck and lumbar spine was expected to improve over time, but the trajectory of improvement over time was affected by any coexisting psychiatric condition.[129]
[129] Plaintiff Exhibit P4, PACB 140, 143
198Dr Tan said that if the plaintiff did consider alternative employment, an assessment with a vocational consultant would be required.[130]
[130] Plaintiff Exhibit P4, PACB 144-145
Dr Symon McCallum, pain physician and specialist anaesthetist
199The plaintiff tendered a report from Dr McCallum dated 1 July 2022.[131] An interpreter attended the examination.
[131]Plaintiff Exhibit P5, PACB 157-162
200The plaintiff complained of severe lower lumbar back pain which he described as feeling as though “he is breaking”, as well as pain radiating down to his legs, more on the left side than the right, and which continued into his hamstring and sole of the foot, with occasional pins and needles.[132]
[132] Plaintiff Exhibit P5, PACB 157-158
201In addition, the plaintiff reported a dull, constant neck pain in the left lower area, which made his face go warm and radiated down into the left shoulder and left wrist. The plaintiff said that the pain in the left arm occurred every one to two days and lasted 25 minutes at a time.[133]
[133] Plaintiff Exhibit P5, PACB 158
202The plaintiff changed between sitting and standing during the examination due to “what looked like being uncomfortable”.[134]
[134] Plaintiff Exhibit P5, PACB 160
203Dr McCallum recorded a very slow gait and mild tenderness in the right acromioclavicular joint. The plaintiff reported pain to palpation in the buttocks, hamstrings, calves, and tenderness to palpation of the arm muscles. He recorded the plaintiff’s lumbar flexion as limited to 10 degrees.[135]
[135] Plaintiff Exhibit P5, PACB 160-161
204The plaintiff reported he could not stand on his toes, and that when he stood on his heels, it was painful and he felt unsteady. Dr McCallum reported there was difficulty eliciting reflexes.[136]
[136] Plaintiff Exhibit P5, PACB 160-161
205Dr McCallum diagnosed cervical whiplash, persistent back pain and a chronic pain syndrome caused at least in part by degenerative changes.[137]
[137] Plaintiff Exhibit P5, PACB 160-161
206Dr McCallum reported that the plaintiff’s spinal pain was “out of proportion with the disability and the distress when combined with other pains …” and that the “most likely cause” of his spinal pain was Somatic Symptom Disorder, albeit he confirmed that psychiatry is outside his area of clinical expertise.[138]
[138] Plaintiff Exhibit P5, PACB 160-161
207Dr McCallum reviewed video footage of the plaintiff, and his comments are set out in further detail at paragraphs 293-295 below.
208Dr McCallum considered that the plaintiff had no capacity for any employment, given his poor functional tolerances, ongoing pain, limited education and English language skills, and considered that such incapacity was likely to continue into the foreseeable future.
Dr Hazem Akil, neurosurgeon
209The plaintiff tendered two reports from Dr Akil dated 21 June 2022 and 10 May 2023.[139]
[139]Plaintiff Exhibit P6, PACB 163-176; PACB 177-182
210An interpreter was present at the first appointment.
211At the second appointment, the interpreter attended via telephone.
212At the first appointment, the plaintiff complained of significant lower back pain, centred around the midline of the lumbosacral region, radiating into both his legs. He reported being unable to walk reasonable distances or to sit or stand for longer than 10 to 15 minutes. He was observed during the examination to alternate between sitting and standing.[140]
[140] Plaintiff Exhibit P6, PACB 164
213In addition, the plaintiff complained of significant neck pain radiating to both his shoulder areas which could sometimes involve both arms all the way to the forearms.[141]
[141] Plaintiff Exhibit P6, PACB 164
214Dr Akil recorded the plaintiff was unable to forward flex his lumbar spine beyond 15 to 20 degrees, was unable to extend his neck at all, and could slightly flex his cervical spine, but was limited in terms of lateral rotation of his head to the left and right.
215Dr Akil noted significant guarding on palpation of the lumbar spine on both sides, but with no clear motor deficit affecting the upper or lower limbs, and normal deep tendon reflexes in the upper and lower limbs.[142]
[142] Plaintiff Exhibit P6, PACB 164
216In his first report, Dr Akil considered the plaintiff could not return to the job market in any capacity.
217Dr Akil provided a diagnosis of an organic condition of myofascial pain affecting the plaintiff’s neck and lower back. He further concluded that the plaintiff was presenting with a psychological component, and that “the psychological impact of the injury is so severe that it had made the symptoms much more severe than the usual”.[143]
[143] Plaintiff Exhibit P6, PACB 166
218Dr Akil considered the psychological impact dominated the plaintiff’s clinical condition.[144]
[144] Plaintiff Exhibit P6, PACB 164
219In his second report, Dr Akil noted that the plaintiff complained of the same pain in his back and both his legs (worse on the left). He described the radiating features as an “electric shock that goes all the way towards the calf and feet” and a feeling of “pins and needles”.[145]He also complained of ongoing neck pain, radiating into his shoulders and down into his arms and hands, worse on the left side, as well as severe headaches.[146]
[145] Plaintiff Exhibit P6, PACB 178
[146] Plaintiff Exhibit P6, PACB 178
220Dr Akil confirmed his earlier diagnosis of myofascial pain as an organic condition. He said the psychological “impact” of the pain continued to be “very prominent”.[147]
[147] Plaintiff Exhibit P6, PACB 180
221On the basis of the presentation to him, Dr Akil opined that the plaintiff had no capacity for any kind of work.[148]
[148] Plaintiff Exhibit P6, PACB 180
222Dr Akil commented on the March surveillance footage in this report – his comments are set out at paragraphs 291-292 of this Judgment.
Dr Justin Lewis, psychiatrist
223The plaintiff tendered one report from Dr Justin Lewis dated 28 July 2022.[149] The examination took place on that day with the assistance of an interpreter.
[149]Plaintiff Exhibit P3, PACB 110-123
224Dr Lewis was provided with a report of Dr Hamza dated 30 September 2019 (this report was not produced to the Court).
225The plaintiff confirmed that he had previously engaged with a psychologist, but he did not find the treatment helpful and disengaged when his funding ceased.[150]
[150] Plaintiff Exhibit P3, PACB 113
226Dr Lewis reported that the plaintiff was well groomed, and gaze avoidant, spending much of the time staring downwards. He presented with a flat demeanour and moderately depressed mood.[151]
[151] Plaintiff Exhibit P3, PACB 118
227Dr Lewis diagnosed a Chronic Adjustment Disorder with depressive and partially remitted traumatisation features.[152]
[152] Plaintiff Exhibit P3, PACB 120
228Dr Lewis opined that the plaintiff did not have capacity to undertake his pre-injury duties from a psychiatric perspective.[153]
[153] Plaintiff Exhibit P3, PACB 121
229In terms of alternative employment, Dr Lewis concluded the plaintiff had a psychiatric capacity to undertake suitable employment up to three days per week.[154]
[154] Plaintiff Exhibit P3, PACB 121
230Dr Lewis commented that any such employment would need to be within the plaintiff’s physical restrictions, and that it would not be appropriate for him to engage in any roles where a lapse in concentration would pose a risk to himself or others.[155]
[155] Plaintiff Exhibit P3, PACB 121
231Dr Lewis further commented that the plaintiff would be at significant disadvantage in the open labour market relative to able-bodied individuals and due to his poor education and limited English skills.[156] This opinion is outside Dr Lewis’ area of expertise.
[156] Plaintiff Exhibit P3, PACB 121
232Dr Lewis’ comments about the surveillance are set out in paragraph 296 below.
Defendant’s medico-legal practitioners
Dr David Elder, occupational physician
233The defendant tendered three reports from Dr Elder dated 9 February 2021, 25 May 2021, and 18 May 2022.[157]
[157]Defendant Exhibit D1, DCB 25-33; DCB 35-45; DCB 46-48
234Dr Elder’s first examination was on 9 February 2021. An interpreter was present.
235The plaintiff reported ongoing low back pain of 7/10 which the plaintiff said fed into his mental condition. He did not describe radicular features or alteration in bladder and bowel.[158]
[158] Defendant Exhibit D1, PACB 28
236Dr Elder noted the plaintiff’s gait was suggestive of pain behaviour as he could not find an organic gait abnormality.[159]
[159] Defendant Exhibit D1, PACB 28
237During the appointment, the plaintiff sat, then stood and clutched his back and displayed pain behaviour.[160]
[160] Defendant Exhibit D1, PACB 28
238Dr Elder had difficulty eliciting information from the plaintiff regarding his functional tolerances, medication, treatment regime and activities of daily living, even with the assistance of the interpreter.[161]
[161] Defendant Exhibit D1, PACB 28
239Dr Elder was unable to conduct a formal clinical examination as the plaintiff said he was unable to dress himself or undress himself, and he had attended alone (that is, without his wife or any other person).
240Dr Elder said that without a physical examination he was “very restricted” in the opinion he could give, but otherwise accepted it was possible the accident had caused a soft tissue injury to the plaintiff’s lumbar spine, and that he had transitioned to “some form of pain presentation”.[162]
[162] Defendant Exhibit D1, PACB 29
241The second report dated 25 May 2021, related to a clinical examination which took place on that day.
242Dr Elder noted that the plaintiff presented “in a manner clouded by abnormal illness behaviour”.[163]
[163] Defendant Exhibit D1, PACB 38
243Dr Elder noted that the plaintiff held onto various parts of the furniture and clutched at his back in a way which Dr Elder opined was expressive of pain behaviour.[164]
[164] Defendant Exhibit D1, DCB 38
244On clinical examination, Dr Elder noted significant variations between formal and informal examination, including positive Waddell signs and being able to perform a seated straight leg raise (SLR) of 90 degrees without any discomfort, in contrast to the plaintiff displaying almost no range of movement in the lumbar spine during formal examination.[165]
[165] Defendant Exhibit D1, PACB 38
245Dr Elder noted normal reflexes and no asymmetry in limb measurements and an absence of muscular spasm. He also recorded that “Power was of a collapsing give way pattern, sensation was diminished in a nonanatomic distribution in a stocking in both legs”.[166]
[166] Defendant Exhibit D1, PACB 38-39
246Dr Elder concluded that the plaintiff initially suffered a soft tissue injury to the low back, but he appeared to have transitioned to abnormal illness behaviour or a pain syndrome.
247Dr Elder commented that such a diagnosis would need “to be objectively verified outside the consultation room environment”.[167]
[167] Defendant Exhibit D1, PACB 39
248Without such objective verification, Dr Elder declined to comment on the plaintiff’s capacity for employment.[168]
[168] Defendant Exhibit D1, PACB 39-40
249Dr Elder’s third report dated 18 May 2022, commented on the surveillance. His views are set out in further detail at paragraphs 297-298 below.
Associate Professor Andrew Carroll, psychiatrist
250The defendant tendered a report from Associate Professor Andrew Carroll dated 6 March 2021, which was prepared after an examination on 2 March 2021.[169]
[169]Defendant Exhibit D2
251The plaintiff reported the other car hit him whilst travelling at 100 kilometres per hour, that he lost consciousness, and was thrown 30 metres away.
252Associate Professor Carroll noted that such a recollection was not consistent with the contemporaneous Ambulance Victoria Patient Care Record[170] and the Monash Emergency Monash Health Dandenong Emergency Discharge Summary.[171]
[170] Plaintiff Exhibit P7
[171] Defendant Exhibit D4
253The plaintiff reported feelings of sadness, anxiety, poor mood and difficulties with sleep and concentration. He also reported being reminded of the accident two to three times a week when he heard certain noises, and experiencing nightmares two to three times a week.
254Associate Professor Carroll observed his mood to be “rather tense and miserable”.[172]
[172] Defendant Exhibit D2, PACB 52
255The plaintiff reported he could drive up to 20 minutes at a time, could go shopping with his wife but could not carry any bags, did not assist with any housework, and required help when showering and sometimes dressing.
256Associate Professor Carroll noted that the plaintiff stood up every 5-10 minutes throughout the examination and displayed occasional facial grimacing as though in pain.[173]
[173] Defendant Exhibit D2, PACB 52
257Associate Professor Carroll also noted that the plaintiff tended to give lengthy, verbose replies, and that on several occasions the interpreter used several clarifying questions before the plaintiff would answer the question that was put to him.
258Associate Professor Carroll diagnosed the plaintiff with Major Depressive Disorder of moderate severity with anxious distress. He did not consider that the plaintiff met the threshold for a diagnosis of PTSD.
259Associate Professor Carroll considered the plaintiff had psychiatric capacity for a full return to work.
Associate Professor George Mendelson, psychiatrist
260Associate Professor Mendelson examined the plaintiff on 18 May 2022.
261He provided a report dated 31 May 2022.[174]
[174] Defendant Exhibit D3, PACB 69 -93
262Associate Professor Mendelson reported that the plaintiff appeared somewhat tense and that there was some mild anxiety which was most likely attributable to the nature of the medical examination.[175] He commented that the plaintiff’s affect was otherwise unremarkable.
[175]Defendant Exhibit D3, PACB 71
263The plaintiff told Associate Professor Mendelson that he had lost consciousness after the accident and had woken up in hospital.[176]
[176] Defendant Exhibit D3, PACB 74
264The plaintiff reported disrupted sleep and reduced concentration due to widespread pain.
265Associate Professor Mendelson concluded the plaintiff was not suffering from any psychiatric condition attributable to the accident.
266Associate Professor Mendelson disputed Dr Vadasseri’s diagnosis of PTSD, and maintained there was no basis whatsoever for a diagnosis of PTSD after setting out and considering a description of PTSD provided by the World Health Organisation.[177]
[177] Defendant Exhibit D3, PACB 83
267Associate Professor Mendelson opined that the plaintiff’s complaints of widespread pain were not attributable to any physical injuries sustained in the accident.
268Associate Professor Mendelson said that if his opinion regarding the lack of an organic injury was correct, then it was reasonable to conclude the plaintiff presented with “learned pain behaviour”[178] rather than a mental disorder.
[178]Defendant Exhibit D3, PACB 86
269Associate Professor Mendelson said that such learned behaviours were reinforced or perpetuated by actual or potential favourable consequences that are pain contingent.
270Associate Professor Mendelson concluded there was no evidence to suggest the plaintiff’s current work capacity was impacted by a mental illness or psychiatric impairment.[179]
[179] Defendant Exhibit D3, PACB 87
Surveillance
271The defendant tendered surveillance footage of the plaintiff taken on 1 March 2021,[180] 2 March 2021,[181] 13 March 2021,[182] 28 July 2022,[183] 14 October 2022,[184] 17 October 2022,[185] 21 October 2022[186] and 2 November 2022.[187]
[180] Defendant Exhibit D6
[181] Defendant Exhibit D7
[182] Defendant Exhibit D8
[183] Defendant Exhibit D9
[184] Defendant Exhibit D10
[185] Defendant Exhibit D11
[186] Defendant Exhibit D12
[187] Defendant Exhibit D13
272The plaintiff had the opportunity to view the video surveillance prior to the hearing, and had provided some of the surveillance to several medico-legal experts for their comment.
273Parts of the video surveillance were played in court.
274Separately, I watched it again for the purpose of providing these reasons.
275The following is a summary of my observations in no order of significance:
· 1 March 2021 – a total of 2 minutes 44 seconds of film showed the plaintiff alighting from the driver’s side of a red car with no apparent restrictions. He was carrying some small grocery items in his left hand. He placed the back of his right hand behind his back for three or four seconds – his open palm was facing outwards – he was carrying a small bottle of soft drink in his right hand. He repeated that action for approximately a further two seconds. In a separate piece of surveillance, the plaintiff was shown walking normally inside a grocery store.[188]
· 2 March 2021 – a total of 5 minutes and 38 seconds of film showed the plaintiff in a taxi attending a medical examination (Associate Professor Carrol’s appointment at 85 Queen Street, Melbourne). The surveillance showed the plaintiff at approximately 9.50am, alighting slowly from a seated passenger position in the taxi. At 11.19am, the plaintiff was outside 85 Queen Street, Melbourne. He placed the back of his left hand on his low back on several occasions. He walked along the footpath with a slight limp. At 11.21am, he got into a taxi by sitting down on the passenger seat first and moving his legs inwards. He was later at a grocery store at approximately 12.20pm, reaching into an upright freezer cabinet. He was not limping.[189]
· 13 March 2021 – a total of 24 minutes and 42 seconds of film showed the plaintiff placing each foot, in turn, up onto the top of a letterbox to adjust his sandals. He walked to a local shopping centre without a limp. He attended a Tattslotto agency and appeared to be conversing with an Asian gentleman who was counter staff at the agency. He was seen walking out of the shop and using his telephone. He held the telephone by tilting his head to the left and balancing it hands-free on his left shoulder. He was later seen in another shop buying small cans of soft drink. He was not limping. He carried a large bag of shopping which he tucked under his left arm and was looking over his left shoulder. He left the shopping centre at approximately 12.28pm. At 12.36pm, he was walking with two of his children. He became involved in an animated conversation with another adult - the conversation lasted for approximately 13 minutes, during which he was seen to display what appeared to be a full range of movement in his neck when he was looking over his left shoulder. He was smiling and laughing with the other adult and walked away from the discussion with no limp.
· 28 July 2022 - a short piece of footage of less than 70 seconds showed the plaintiff walking slowly into a shopping centre with his hand placed in the centre of his back with his palm facing outwards.[190]
· 14 October 2022 – 7 minutes and 10 seconds of film was tendered during which the plaintiff was seen sitting in the driver’s seat of a dark blue Honda Jazz. It appeared that he was reading as he held his head forward in a flexed position for approximately seven minutes.[191]
· 17 October 2022 – 19 minutes and 53 seconds of film was tendered during which the plaintiff attended a petrol station (driving the same Honda Jazz). He checked the petrol pump by looking over his right shoulder. He was not limping. He placed his left hand on his left buttock with his palm down fleetingly for approximately 1 to 2 seconds. He then attended a shopping centre with his wife and children. He was not limping. He entered the car bottom first (like 2 March 2021). After about six minutes, he got out of the car from the driver’s side by pulling himself up by holding onto the window of the door of the car. He then sat in the driver’s seat apparently waiting for his wife. His wife returned to the car, and she loaded items from a trolley into the car boot whilst the plaintiff remained in the car.[192]
· 21 October 2022 - approximately six minutes of video showed the plaintiff attending a suburban property with his wife, and he was in discussion with a woman apparently negotiating the purchase of another car. At one stage, the plaintiff’s wife and the woman looked at some papers. Then the woman shook hands with the plaintiff and the plaintiff’s wife. The plaintiff’s wife then drove away in a small grey car and the plaintiff drove away in a blue car (which was not the Honda jazz shown in the video of 14 October 2022).[193]
· 2 November 2022 - a short piece of video showed the plaintiff walking without a limp. He got into the car bottom first.[194]
[188]Defendant Exhibit D6
[189]Defendant Exhibit D7
[190]Defendant Exhibit D9
[191]Defendant Exhibit D10
[192]Defendant Exhibit D11
[193]Defendant Exhibit D12
[194]Defendant Exhibit D13
Medical commentary on surveillance
Plaintiff’s treating doctors
Dr Mirranay
276Dr Mirranay reviewed the March 2021 surveillance footage of the plaintiff. In his report dated 29 June 2022, he noted that the surveillance showed the plaintiff walking with his child, chatting with a neighbour and carrying some shopping. He said he did not observe the plaintiff working, lifting, or engaging in prolonged bending or twisting, and the plaintiff did not lift his child or push a trolley.
277On this basis, he concluded the surveillance did not change his opinion regarding the plaintiff’s “chronic pain, depress [sic] mood and work capacity”.[195]
[195] Plaintiff Exhibit P14, PACB 226
Dr Weekes
278Dr Weekes reviewed the surveillance report dated 18 March 2021, and commented on it in his report dated 1 July 2022. He did not view the actual surveillance videos. He said that he had read the reports and looked at still photographs – neither of these documents are before the Court.
279Dr Weekes was not provided with any other surveillance.
280Dr Weekes disagreed with Dr Elder’s view that the plaintiff was deliberately misleading or had feigned injuries.
281He said that the surveillance showed functional tolerance in terms of walking, carrying shopping bags, raising his leg to adjust footwear, the ability to shake hands and the ability to flex and extend his lumbar spine. It was Dr Weekes’ view that this was consistent with the presentation to him.
282Dr Weekes commented that chronic pain conditions wax and wane over time, and that the analgesia medication taken by the plaintiff had allowed him to retain a degree of functionality.[196]
[196] Plaintiff Exhibit P16, PACB 243
283Dr Weekes concluded that there was nothing in the material provided to him which would cause him to change his opinion.[197]
[197]Plaintiff Exhibit P16, PACB 243
284Given that Dr Weekes was provided with the March 2021 surveillance report, and some still photographs which are not before the Court, and that he did not have the opportunity to view the film and was not provided with any subsequent surveillance, his comments about the surveillance are of little assistance to the Court.
Dr Scoullar
285Dr Scoullar viewed the March 2021 surveillance.[198]
[198] Plaintiff Exhibit P15, PACB 235
286Dr Scoullar noted that the footage was taken approximately 18 months after she ceased treating the plaintiff.
287Given this, Dr Scoullar advised she was unable to comment on the footage, other than to say there was nothing in the footage which conflicted with her earlier observations of his psychological condition, and she was not inclined to change anything contained in her original report.[199]
[199] Plaintiff Exhibit P15, PACB 235
Dr Vadasseri
288In a report dated 30 June 2022, Dr Vadasseri said that she had reviewed the surveillance report and concluded the footage viewed did not contradict the history of symptoms provided by the plaintiff, her findings in relation to his mental state, or her diagnoses.[200]
[200] Plaintiff Exhibit P13, PACB 218
289Given the date of her report, it is assumed that the surveillance she reviewed was the March 2021 footage.
290She said it was important that the plaintiff be informed about the footage, but did not explain why this was necessary.
Plaintiff’s medico-legal doctors
Dr Akil
291In his report dated 21 June 2021, Dr Akil reviewed surveillance footage (presumably that taken in March 2021). He said that footage can be impacted by the time of day and whether someone has had analgesia prior to the footage. He said that the footage was “quite interesting”, as he observed the plaintiff walking in the footage with “significantly less restrictions” than he presented with during the examination.[201]
[201] Plaintiff Exhibit P6, PACB 168
292Dr Akil considered such differences confirmed his opinion that the psychological element of the plaintiff’s injury dominated the clinical picture.
Dr McCallum
293In his report dated 1 July 2021, Dr McCallum said that he had reviewed video footage of the plaintiff (presumably that taken in March 2021).[202] He said that he observed the plaintiff walking whilst holding his back,[203] and walking with a similar gait but faster pace. He also observed that the plaintiff got in and out of cars “slowly and hesitantly”.[204]
[202] Plaintiff Exhibit P5, PACB 160
[203] Plaintiff Exhibit P5, PACB 160
[204] Plaintiff Exhibit P5, PACB 160
294Dr McCallum commented that when considering cultural differences, education levels and pain beliefs, terms such as abnormal illness behaviour are poorly defined and not useful.[205]
[205] Plaintiff Exhibit P5, PACB 160
295Dr McCallum concluded the footage did not alter his impression or findings and he considered there was no clear evidence of the plaintiff malingering or feigning his condition.
Dr Lewis
296In his report dated 28 July 2022, Dr Lewis noted that he reviewed the surveillance footage dated 18 March 2021.[206] He did not consider there was any inconsistency between the footage and the reported history.[207]
Defendant’s medico-legal doctors
[206] Plaintiff Exhibit P3, PACB 117
[207] Plaintiff Exhibit P3, PACB 123
Dr Elder
297In a report dated 18 May 2022, Dr Elder said on reviewing the surveillance footage (presumably of March 2021), he observed the plaintiff to "mobilise normally with no difficulty at all”, as well as undertake “shopping, driving and walking, carrying items and utilising his spine and lower extremities normally”.[208]
[208] Defendant Exhibit D1, PACB 48
298This led Dr Elder to conclude “I can only assume he was being deliberately misleading of me” and that the “only conclusion one can draw is that he suffers from no medical condition and his pain presentation is deliberately feigned”.[209]
[209] Defendant Exhibit D1, PACB 48
Plaintiff’s commentary on surveillance
299In his affidavit sworn 10 June 2022, the plaintiff said the following about the March 2021 surveillance:
“I have been shown surveillance footage of myself, and I do not think the footage is inconsistent with my current symptoms and restrictions. My doctors have encouraged me to get out and do as much as I can, including walking. Several times on the footage, I grab my back. In the longer video at around the two minute mark, I am walking with a hobble or limp. At around the four minute mark, I get into a taxi. Before my back injury, I would have got in with my right leg first, but as seen on the footage, I have to sit down on the seat carefully, and swing my legs in.”[210]
[210]Plaintiff Exhibit P1, PACB 17 [14]
300The plaintiff did not comment on the subsequent surveillance in his third affidavit dated 14 June 2023.
301The plaintiff’s self-assessment of video is of little assistance to the Court in this case.
Plaintiff’s submissions on surveillance and credit
302Senior Counsel for the plaintiff said that the plaintiff did not have a clear recollection of certain matters but submitted he was doing his best.[211]
[211] T193, L1-4; T197, L12-24
303Senior Counsel for the plaintiff submitted his evidence should be regarded within the context that he had received very limited education in his home country,[212] and that there were language issues which clouded the evidence he was able to give.[213]
[212] T192, L25-31
[213] T192, L8-20
304Senior Counsel submitted the plaintiff was observed throughout the surveillance to repeatedly express genuine pain behaviours, including walking with a limp which was at times pronounced and at times mild, placing his hand to his back in a manner suggestive of pain, and getting in and out of vehicles in a cautious and slow manner by placing his bottom on the seat first and then swinging his legs in.[214]
[214] T199-200
305It was not suggested that any unreliability of the plaintiff was explicable by his psychiatric condition.
Defendant’s submissions on surveillance and credit
306The defendant submitted the current application was heavily premised on the plaintiff’s subjective complaints, as opposed to objective clinical signs of injury.
307In these circumstances, the defendant submitted the reliability and credibility of the plaintiff were crucial to determining the claim.
308In relation to surveillance, the defendant submitted that the footage showed the plaintiff attending to his daily activities in a way that was inconsistent with his presentation to doctors.
309It was highlighted that on 2 March 2021, the plaintiff presented as very disabled when approaching and leaving the medical examination on that day, compared to him attending to shopping an hour or so later with no obvious limp or gait impairment.
310It was also said that the footage of 13 March 2021, which showed the plaintiff placing each foot on top of a letterbox to adjust his sandals, contrasted with his presentation to Dr Tan in April 2022, when he was unable to perform a heel shin test and the plaintiff’s assertion that he required assistance from his wife to dress and put his socks on and his pants on.
311The defendant submitted the plaintiff was an uncooperative and evasive witness who was neither credible nor reliable, meaning the Court should be reluctant to accept the plaintiff’s evidence regarding his pain and symptoms.
Findings on surveillance
312It appears that no doctor was provided with the surveillance dated 28 July 2022, 14 October 2022, 17 October 2022, 21 October 2022 and 2 November 2022, as no doctor has commented on it.
313The doctors’ comments relate only to the March 2021 surveillance therefore their views about the surveillance must be considered in that limited context.
314In contrast, the Court has had the opportunity to view additional surveillance.
315I note that during the proceeding, the plaintiff demonstrated the degree of movement he had in his back and neck.[215]
[215] T114-116
316I observed that when the plaintiff bent his upper body forward from his waist, his extension was limited to approximately 20 degrees.[216]
[216] T115, L1-8
317I also observed that when the plaintiff turned his neck to the left side of his body, his rotation was restricted to 30-35 degrees,[217] and when turning his neck to the right side of his body his rotation was restricted to 35-40 degrees.[218]
[217] T116, L2
[218] T116, L10
318This contrasted with the plaintiff’s presentation in the surveillance.
319On several occasions in the surveillance, the plaintiff moved his neck in what appeared to be a normal manner, free from obvious pain or restriction on multiple occasions when crossing the road and walking through a carpark,[219] and during a conversation with a neighbour.[220] These neck movements were in stark contrast to the range of movement displayed by the plaintiff in court.
[219] Defendant Exhibit D7
[220] Defendant Exhibit D8
320His walking varied in the footage. At times he walked slowly with a limp,[221] particularly on 2 March 2021 when he was attending a medico-legal examination arranged by the defendant.
[221] Defendant Exhibit D7
321At other times in the surveillance footage, I observed the plaintiff to walk at a faster pace without a limp.[222]
[222] Defendant Exhibit D8
322When he was seen lifting his right leg onto a letterbox to adjust his sandal, he performed the movements with ease and no obvious signs of discomfort. Similarly, when he performed the same movements with his left leg, he did so with apparent ease and no obvious signs of discomfort. [223]
[223] Defendant Exhibit D8
323Such fluid and unrestricted movement was in stark contrast to the plaintiff’s presentation, as recorded by medico-legal examiners and from my observations in court.
324The plaintiff was seen to converse with a person during a walk with his children. In cross-examination, he confirmed that he was talking to a neighbour.[224] I observed the plaintiff smiling, laughing, and gesturing freely during the conversation. To my observation, he presented as jovial during the conversation – this was in stark contrast to his presentation to doctors as discussed below.
[224] T131, L21-23
325I do not accept the submissions made by Senior Counsel for the plaintiff that the surveillance showed genuine pain behaviours.
326On my observation, apart from getting in and out of vehicles in a somewhat cautious matter, and walking on one occasion with a slight limp, the plaintiff appeared on the surveillance to be moving relatively freely.
327On the few occasions he placed his hand to his back, it was done with the back of his hand resting gently on his low back and his open palm facing outwards.
328At no time did the Court observe the plaintiff clutching or holding his back in any way indicative of a response to pain.
329The plaintiff’s behaviour in the surveillance contrasts significantly with his presentation to several doctors.
330The following are examples:
· in March 2020, the treating psychologist, Ms Scoullar, said the plaintiff:
“… presented in tracksuits and a black t-shirt at each appointment, his hair was not combed, and he was unshaven. He was softly spoken, had his head down, did not make eye contact and when he walked, he shuffled. He appeared to be always tired and had a flat affect.”[225]
· on 2 March 2021, Associate Professor Carroll said that the plaintiff was:
“… moderately restless. He stood up after approximately 5 minutes evidently to relieve pain and did so repeatedly every 5-10 minutes throughout the interview. He showed occasional facial grimaces as though in pain.[226]
· in May 2021, Dr Elder described his presentation as follows:
“Gait was shuffling with him holding onto various parts of the furniture and when he could not he would then clutch at his low back being expressive with pain behaviour and exhalation.”[227]
[225]Plaintiff Exhibit P15, PACB 228
[226]Defendant Exhibit D2, PACB 52
[227]Defendant Exhibit D1, PACB 38
331The surveillance was also at odds with the plaintiff’s viva voce evidence that his ability to speak English was limited to saying “hello” and “how are you”, and that he could not understand English when it was spoken to him.[228]
[228] T58, L10-24
332Surveillance taken on 21 October 2022 captured the plaintiff conversing with a female, and during cross-examination the plaintiff confirmed he met with this woman to purchase a car from her.[229]
[229] T144, L14-28
333When cross-examined as to how he was able to converse with the woman, given he could not speak or understand English, the plaintiff responded:
“No, it wasn’t a normal conversation, I think I said more than 10 times, sorry, sorry.”[230]
[230]T145, L4-5
334Upon further questioning the plaintiff responded that he:
“probably ask maybe make it a bit cheaper, that’s all probably.”[231]
[231] T145, L23-24
335When asked if he negotiated a price for the vehicle, the plaintiff responded:
“I don’t remember, I might have asked her to give me some discount that’s all.”[232]
[232] T145, L29-30
336His evidence was that his wife completed the necessary paperwork.[233]
[233] T145, L17-30
337The Court finds that the plaintiff has understated his ability to speak and understand English.
Findings on credit
338The Court is mindful of what the Court of Appeal has said in cases such as Dordev v Cowan and Ors[234] (“Dordev”) and Petrovic v Victorian WorkCover Authority,[235] and most recently in Popal v Transport Accident Commission,[236] in relation to a plaintiff’s credit in serious injury applications.
[234][2006] VSCA 254
[235][2018] VSCA 243
[236][2023] VSCA 222
339The Court has considered the possible ameliorating effects of the plaintiff’s claimed language difficulties and potential cultural issues.
340Overall, I find the plaintiff’s evidence to be unsatisfactory.
341In addition to the findings in relation to the surveillance, the Court considers that the plaintiff tends to catastrophise and overstate issues.
342An example of these tendencies can be found in his first affidavit in which he asserted that he was told by his treating neurologist, Mr Timms, that surgery was not recommended. The plaintiff went on to say:
“Mr Timms advised me that I was too young to justify undergoing a surgery.”[237]
[237]Plaintiff Exhibit P1, PACB 8 [10]
343There is no suggestion from Mr Timms that he ever held such opinion, or that he ever informed the plaintiff of the same.
344A further example of the tendency to overstate issues can be found in the history provided to doctors in relation to loss of consciousness, despite there being no evidence in the ambulance officers’ report or the Monash Emergency Department notes of a loss of consciousness or a head injury.
345The plaintiff told the following doctors that he experienced a loss of consciousness:
· Dr Michael Tan[238]
· Dr Symon McCallum[239]
· Mr Craig Timms[240]
· Dr Justin Lewis[241]
· Dr David Elder[242]
· Associate Professor Carroll[243]
· Associate Professor Mendelson[244]
[238] Plaintiff Exhibit P4, PACB 125
[239] Plaintiff Exhibit P5, PACB 157
[240] Plaintiff Exhibit P11, PACB 199
[241] Plaintiff Exhibit P3, PACB 112
[242] Defendant Exhibit D1, PACB 27
[243] Defendant Exhibit D2, DCB 53
[244] Defendant Exhibit D3, DCB 70
346Further, in his affidavit of March 2020, the plaintiff said that he continued to see Dr Hamza “for pain management and prescriptions”, but produced no material from that doctor, despite Dr Justin Lewis being provided with a report from Dr Hamza. No explanation was proffered to explain this.
347The plaintiff did not adequately explain why he refused to participate in recommended treatments such as dry needling,[245] a daily exercise program,[246] radiotherapy denervation,[247] or return to the PMP, or why he could not participate in hydrotherapy.
[245]Recommended by Ms Barnard
[246] Recommended by Dr Kennedy
[247]Recommended by Dr Weekes
348Finally, the plaintiff did not explain why he would not consider returning to any form of alternative work as he had discussed with Dr Tan.
349I find that the plaintiff has adopted a sick role whether deliberately or otherwise. He is prone to exaggerate and has overstated his restrictions and understated his level of English. He has not been prepared to participate in treatment recommendations or to explore the prospect of a return to alternate employment.
350Consequently, I have viewed the plaintiff’s evidence as to the ongoing consequences of the transport-accident-related injuries with caution, and I will only accept the asserted consequences if there is other objective evidence to support them.
The lay evidence
351The plaintiff tendered an affidavit affirmed by his wife.
352Mrs Jabarkhail was not required for cross-examination.
353In this case, the failure to cross-examine Mrs Jabarkhail was not significant, as the Court has formed the view that the plaintiff’s reliability was so weakened in cross-examination, there was no real need to cross-examine her.[248]
[248]Woolworths Ltd v Warfe [2013] VSCA 22; Ifka v Shahin Enterprises Pty Ltd [2014] VSCA 8 [47]; Siddel-Whipp v Transport Accident Commission [2020] VSCA 109 at [88]
354Given my findings on reliability and credit set out above, I place little weight on the evidence of Mrs Jabarkhail, despite the fact she was not cross-examined.
Pain and suffering consequences relied upon by the plaintiff – in relation to the spine.
355The plaintiff relies upon a variety of consequences said to flow from the injury to his spine, set out in his affidavits affirmed on 20 March 2020, 10 June 2022 and 14 June 2023.[249]
[249]Plaintiff Exhibit P1, PACB 6-14; PACB 15-18; PACB 19-21
356The consequences include:
· Constant low back pain radiating into both legs and constant neck pain, which at times radiates into his left shoulder, with some fluctuation in pain depending on his activities.
· The need for pain medication.
· Inability to walk for more than 10-15 minutes.
· Increased pain when sitting or standing for more than 10-20 minutes.
· Difficulty with a variety of activities of daily living, including showering, sitting on the toilet and dressing, with the need to use a shower chair once or twice a week and obtain assistance from his wife.
· Reliance on his wife for the completion of housework, cooking and looking after their children where he previously assisted with such tasks.
· Reduced ability to play with or bend over to pick up his children.
· Limitations on driving – he said he could drive locally, but after 20 minutes his pain increased. He relied on his father-in-law to drive him “a lot”.
· Diminished sexual intimacy with his wife.
· Disrupted sleep.
· Loss of enjoyment of hobbies, including cricket which he previously played socially with friends in the park most weekends during summer.
· Restriction on his ability to attend his mosque.
· Inability to return to work. Despite applying for a few roles and receiving an interview at an Indian grocery store, once he told them about his back condition, they were not interested in employing him.
What is the plaintiff’s claimed physical condition that causes impairment?
Plaintiff’s submissions
357The plaintiff predominantly relied upon the medical opinions of Dr Kennedy, Dr Mirranay, Dr Weekes and Mr Timms.
358The plaintiff’s submissions were in effect that imaging of the plaintiff’s spine and the opinions of the above doctors were sufficient to establish a predominant organic injury, being disc injuries to his lumbar and cervical spine.
Defendant’s submissions
359The defendant submitted to succeed under paragraph (a), the plaintiff was required to prove that his pain and impairment consequences are predominantly the product of an organic injury to the spine.[250]
[250]In making this submission, the defendant referred to TAC v Kamel [2011] VSCA 110 [65] and Richards v Wylie [2000] VSCA 50
360The defendant conceded that the plaintiff initially suffered a soft tissue injury to the spine in the accident,[251] but submitted the organic component of the spinal injury had since resolved and his current consequences were predominantly the result of non-organic factors.[252]
[251] T38, L9-11
[252] T38, L17-24
361The defendant submitted that in relation to the plaintiff’s medical evidence supporting a predominant organic injury:
· First, the opinion of Dr Weekes should not be accepted as he did not examine the plaintiff’s cervical spine, despite complaints of neck pain and stiffness.
· Second, Dr Weekes’ opinion did not properly explain how a minor lumbar spine injury could produce the widespread pain and disability reported by the plaintiff.
· Third, the same criticisms were made in relation to Dr Mirranay.
· Fourth, Dr Timms had not treated the plaintiff in approximately four years, meaning his opinions were now significantly out of date.
362Consequently, the defendant submitted that once the opinions of Dr Weekes, Dr Mirranay and Dr Timms were excluded, the overwhelming balance of medico-legal evidence identified a predominantly psychiatric basis for the plaintiff’s complaints.
363In this regard, the defendant relied upon the opinions of Dr McCallum, Dr Akil, Dr Tan and Dr Elder. The defendant submitted these doctors all agreed in essence that whilst there may be an organic component to the plaintiff’s presentation, his situation had been taken over by a psychiatric condition to a significant degree, such that it could no longer be said the organic condition was a predominant cause of the plaintiff’s condition.
364On this basis, the defendant submitted the plaintiff had failed the onus and that the paragraph (a) claim necessarily failed.
Findings
365A plaintiff’s credibility is relevant not only to the question of whether his evidence should be accepted.
366Credibility can also be relevant to the reliability of the medical evidence presented, where the opinions of doctors are essentially dependent on the credibility and reliability of the history given to them by a plaintiff, particularly in psychiatric claims.
367It is important that the relevance of radiology is not overstated.
368In this case, the radiology shows mild degenerative changes in the lumbar and cervical spine.
369As Chernov JA said in Dordev, the fact that there is pathology (in this case radiology), does not, of itself, establish consequences of any degree of gravity or a specific source. It was noted that doctors had to depend on the accuracy of histories provided to them by their patient as to their true level of disability. His Honour therefore reasoned that medical opinion, based on accounts by a witness as to their symptoms, may have little or no probative weight where a Court has determined that the witness was not reliable.[253]
[253]Dordev v Cowan and Ors (supra) at paragraph [19]
370Further there was no credible explanation proffered by the plaintiff or any medical practitioner which could explain his purported inability to participate in hydrotherapy, or his ongoing complaints of diffuse widespread pain.
371The medical opinions relied on by the plaintiff were largely based on the doctors accepting the plaintiff’s complaints of pain and restrictions.
372After considering all the evidence, including the surveillance footage, the Court does not accept that the plaintiff has presented either to the Court or medical practitioners in a frank and credible way.
373Given my concerns as to the plaintiff’s reliability and credit, and the impact this has on the medical evidence, the Court does not accept that the plaintiff has sufficiently established that there is an ongoing organic basis for his current complaints.
Consequences of organic injury
374If I am wrong about there not being sufficient evidence of an ongoing organic injury, I have considered whether, on the evidence, the plaintiff’s claim under (a) would meet the test of serious injury.
375In terms of consequences, Senior Counsel for the plaintiff particularly focused on the fact the plaintiff had not worked since the accident, and would not return to work in the foreseeable future, as proof that he satisfied the relevant serious injury threshold with regard to paragraph (a).[254]
[254] T183, L24-31; T84, L1-16; T185, L26-27
376To properly understand that submission, the Court needs to consider the evidence relating to the plaintiff’s work and work capacity.
377The plaintiff has not described the nature of his pre-accident duties at the Wagstaff Abattoir in any of his affidavits.
378However, the plaintiff told Dr Tan, in July 2019, that his pre-accident work involved processing meat on conveyor belts. He used a knife to cut and pack meat and he was required to mainly stand and intermittently bend; reach, push/pull, twist; and rotate his body parts. He said that he had to lift between 5 to 10 kilograms.[255]
[255]Plaintiff Exhibit P4, PACB 128
379Despite telling Dr Tan, in April 2022, that he would not consider alternate employment, in his affidavit of 10 June 2022, the plaintiff said that he would like to return to work to support his family and had applied for a few unspecified roles. The plaintiff said he had obtained an interview for a job as a storeman at an Indian grocer in Cranbourne East, but that they were not interested when he told them about his back problem.[256]
[256]Plaintiff Exhibit P1, PACB 18 [16]
380It is difficult to see how the plaintiff could be looking for work as a storeman in an Indian grocery store if his spoken English is as bad as he sought to prove to the Court.
381In any event, it appears that Dr Tan was the only doctor who was provided with any detailed description of the plaintiff’s work activities.
382The plaintiff’s apparent change of attitude towards alternate employment was not reported to any doctor, but appears to have been referred to only in an affidavit in support of his application.
383No corroborating evidence was produced to the Court.
Pain and suffering consequences relied upon by the plaintiff – in relation to (c) claim
384The plaintiff relies upon a variety of consequences said to flow from the paragraph (c) injury, as set out in his affidavits affirmed 20 March 2020, 10 June 2022 and 14 June 2023,[257] including:
· ongoing depression, anxiety, forgetfulness and poor concentration;
· loss of confidence, occasional nightmares, social withdrawal, difficulty travelling in cars as a passenger;
· the need for psychotropic medication;
· continued monthly attendances upon his psychiatrist (Dr Vadasseri).
[257]Plaintiff Exhibit P1, PACB 6-14; PACB 15-18; PACB 19-21
Submissions of the plaintiff in relation to (c)
385Senior Counsel for the plaintiff relied upon three differential diagnoses in relation to the paragraph (c) claim, being PTSD, Major Depressive Disorder and/or Somatic Symptom Disorder with Predominant Pain.[258]
[258] T3, L27-31; T4, L1
386Senior Counsel for the plaintiff did not make any submissions regarding which diagnosis the Court should prefer.
387As the Court understands the plaintiff’s submissions, it was maintained the plaintiff met the relevant serious injury test regardless of which diagnostic label was applied.
388In terms of consequences, Senior Counsel for the plaintiff focussed on the plaintiff’s inability to work since the accident, and the likelihood he would not return to the workforce for the foreseeable future despite his young age.
389Senior Counsel for the plaintiff referred to the opinion of Dr Vadasseri that the plaintiff had no work capacity on psychiatric grounds, and the opinion of Dr Lewis that the plaintiff was unable to work more than three days a week because of his psychiatric state.[259]
[259] T187, L7-14
390It was then said that even if Dr Lewis was accepted, the plaintiff’s loss of capacity for full-time employment should be accepted as a “very considerable” consequence.[260]
[260] T187
391It was submitted that the Court should leave aside the opinion of Associate Professor Mendelson. However, no reasons were submitted as to why the Court should adopt such an approach.
Submissions of the defendant in relation to (c)
392The defendant submitted that if the Court found there was no persuasive evidence of an organic condition, this did not necessarily result in a finding that the plaintiff’s symptoms were the result of a mental or behavioural disturbance or disorder.[261]
[261] Zhang v Joy Foods Australia Pty Ltd [2016] VSCA 199 [5], [46]
393The defendant submitted the Court should find the plaintiff also did not suffer from any mental or behavioural disturbance, and that his reported symptoms did not have a genuine psychiatric basis.[262]
[262] T50, L27-30
394The defendant relied primarily upon the opinion of Associate Professor Mendelson.
395The defendant made submissions as to why each of the diagnoses relied upon by the plaintiff should not be accepted by the Court.
396First, it was said that the diagnosis of somatoform disorder was a “contentious” diagnosis.
397Whilst Dr McCallum and Dr Vadasseri accepted that the plaintiff was suffering from a Somatic Disorder, Dr Lewis and Associate Professor Carroll rejected the diagnosis.
398Insofar as Dr McCallum provided such a diagnosis, the defendant submitted this was outside his area of expertise, and his opinion in this regard should not be accepted.
399In terms of Dr Vadasseri, the defendant submitted she only considered a Somatic Disorder after she had reviewed the report of Associate Professor Mendelson.
400The defendant submitted Dr Vadasseri had consistently diagnosed the plaintiff with PTSD and Major Depressive Disorder, and only introduced a possible Somatic Disorder in August 2022.
401The defendant submitted Dr Vadasseri’s opinion should therefore not be accepted, as it failed to reveal a path of reasoning as to why such a diagnosis was appropriate and why she had not diagnosed such a condition previously.
402In terms of the PTSD, the defendant again maintained the balance of the medical opinion was that the plaintiff did not suffer from any such condition.
403The defendant noted the only psychiatrist who had provided such a diagnosis was Dr Vadasseri. The defendant submitted her opinion should not be given much weight, as she did not set out the diagnostic criteria for the condition nor reveal her reasoning as to why the plaintiff met the threshold for such a diagnosis.
404In contrast, the defendant submitted Associate Professor Mendelson, Associate Professor Carroll and Dr Lewis all took a detailed account of the accident and the plaintiff’s post-accident and ongoing psychiatric symptoms. The three specialists believed the plaintiff did not meet the relevant diagnostic criteria for PTSD.
405The defendant noted that the psychologist, Ms Scoullar, had diagnosed PTSD. The defendant submitted her opinion should also be given limited weight as she was not a psychiatrist, and her opinion was now two years old.
406In terms of the Major Depressive Disorder, the defendant noted that Dr Vadasseri accepted such a disorder, whereas Dr Lewis preferred a diagnosis of chronic adjustment disorder.
407As such, the defendant urged the Court to conclude that the plaintiff did not suffer from a mental or behavioural disturbance or disorder.
408In the alternative, the defendant submitted the plaintiff did not meet the requisite “severe” threshold in relation to the paragraph (c) claim.
409In terms of consequences, the defendant submitted the plaintiff was attending a psychiatrist once a month, was not seeing a psychologist, had never been hospitalised or attended an emergency department for psychiatric treatment, and had not required treatment for suicidal ideation or attempts.
410The defendant further submitted the psychiatric symptoms described by the plaintiff were limited and, at most, had a moderate impact on his life.
Findings in relation to psychiatric matters
411After considering all the evidence, I accept that the plaintiff has a psychiatric condition which requires attendance on a psychiatrist once a month. His psychiatric medication regime is modest.
412There was no convincing evidence before the Court that he is suffering from psychiatrically-driven pain.
413The physical doctors who could not explain his ongoing pain on any organic basis opined that there might be a psychiatric reason behind the pain. For example, Dr McCallum said:
“I think the most likely cause of his significant spinal pain that seems to be out of proportion with the disability and distress when combined with the other pains is going to be somatic disorder predominantly pain. This is an equivalent of persistent somatoform disorder.
When we go through the criteria for DSM 5, I think this is the most likely diagnosis.”[263]
[263]Plaintiff Exhibit P5, PACB 160
414Dr McCallum is a pain physician and specialist anaesthetist and, as such, is not qualified to provide a psychiatric opinion.
415Similarly, Dr Akil could not explain the plaintiff’s ongoing complaints on organic grounds and said:
“… the psychological element is quite severe and the psychological impact of the injury dominates his clinical condition.”[264]
[264]Plaintiff Exhibit P6, PACB 167
416Dr Akil, a neurosurgeon, is also not qualified to provide a psychiatric opinion.
417Dr Vadasseri, as discussed earlier, provided a qualified diagnosis of Somatoform Disorder.
418In contrast, as discussed earlier, both Dr Lewis and Associate Professor Carroll rejected that diagnosis. Associate Professor Mendelson did not support the proposition that there was a psychiatrically-driven pain syndrome in this case.
419At its highest, the plaintiff’s evidence is that his treating psychiatrist has provided numerous diagnoses without a proper treatment plan.
420Taking the plaintiff’s case at its highest, the plaintiff may have a psychiatric condition - any accident-related psychiatric condition could be described as more than significant or marked, but does not reach the higher level of “severe”.
421Having said this, it is noted that there is a divergence of opinion between the various psychiatrists.
422In psychiatric cases, the reliability and credit of a plaintiff is of great significance as the medical witnesses are heavily dependent on the veracity and accuracy of a plaintiff’s description of symptoms and reporting of consequences.
423In this case, my reservations about the plaintiff and my findings on his credit affect the weight I place on the opinions of both treating doctors and the medico-legal psychiatrists.
424In respect of Ms Scoullar, as discussed earlier, I place limited weight on her opinion because she is not a qualified psychiatrist and her opinion is now quite dated.
425In relation to Dr Vadasseri, it is significant that she is the plaintiff’s long-term treating psychiatrist. The Court is concerned at her apparent willingness to alter her diagnoses without any proper explanation and without providing a path of reasoning for such alteration. Consequently, the weight which would normally be given to a long-term treating psychiatrist’s opinion is lessened because of these difficulties.
426Looking at the whole of the evidence, I find that the plaintiff does not have PTSD.
427I reject the defendant’s primary submission that the plaintiff does not have a psychiatric condition, as it goes against the weight of the evidence.
428However, given my findings about the plaintiff’s credit and reliability, I accept the defendant’s secondary submission that the plaintiff’s psychiatric condition (whether it be described as a depressive disorder or a chronic adjustment disorder), and the consequences of that condition, do not meet the statutory test.
429The Court is not satisfied that the plaintiff suffers from a severe mental or behavioural disorder because of the subject accident.
430I have considered the case of Noori v Topaz Fine Foods Pty Ltd (“Noori”),[265] where there was no dispute between the parties that the plaintiff’s pain had a psychological basis rather than a physical basis.
[265][2018] VSCA 323
431In Noori,[266] the issue was whether it was necessary or appropriate to separate or disentangle consequences of a pre-existing psychiatric condition. The Court of Appeal said it was neither necessary or appropriate to do so, and that no question of “disentangling” arises under a (c) claim.
[266] Ibid
432These matters were not relevant to this case.
Conclusion
433The application is dismissed.
434I will hear the parties on the issue of costs.
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