John Moutzouris v Transport Accident Commission
[2010] VCC 1378
•07 October 2010
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
DAMAGES LIST
GENERAL DIVISION
Case No. CI-09-04963
| JOHN MOUTZOURIS | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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| JUDGE: | HER HONOUR JUDGE MILLANE |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 23 and 26 August 2010 |
| DATE OF JUDGMENT: | 07 October 2010 |
| CASE MAY BE CITED AS: | John Moutzouris v Transport Accident Commission |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 1378 |
REASONS FOR JUDGMENT
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Catchwords: s93 Transport Accident Act 1986 – Serious Injury – Multiple Accidents and injuries – application under para. (a) and (c) of the definition of serious injury – injury to right foot – post traumatic stress disorder – adjustment disorder with anxiety and depression – evidence of pain amplification syndrome – credit issues
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | P A Jewell SC | Arnold Thomas & Becker |
| J Valiotis | ||
| For the Defendant | M R Titshall QC | Transport Accident |
| P J Gates | Commission | |
| HER HONOUR: |
Introduction
1 By originating motion the plaintiff seeks leave to bring proceedings for damages in respect of injuries suffered by him as a result of an accident on 1 July 2007 (“the accident”). According to his affidavit sworn on 26 July 2010, the accident occurred on the Moorandah Highway at Blackspur when the vehicle he was driving was struck with "significant force" by a vehicle travelling in the opposite direction, the latter having cut around the corner too fast whilst not travelling fully in its lane.[1]
[1] Plaintiff’s Court Book (“PCB”) 5.
2 In paragraph 10 of his affidavit, the plaintiff described injuries suffered as follows:
“10. … • Right Achilles tendon/heel. • Lower back. • Right hand – fifth metacarpal. • Both shoulders, especially his right. • Head injury. • Post traumatic stress disorder. • Depression and heightened anxiety.”[2] [2] PCB 5 – 6.
3 Apart from treating the fractured right fifth metacarpal, on 4 July 2007 orthopaedic surgeon, Mr Byrne operated to repair the Achilles tendon injury following which the plaintiff was treated and underwent rehabilitation for all of his injuries at The Victorian Rehabilitation Centre.[3]
[3] PCB 6.
4 The plaintiff deposed to his current treatment in paragraphs 24, 25 and 28 of his affidavit where he said:
"24. I remain under the treatment of my GP who is now Dr Gee. In the past I have been prescribed Endone. I am still able to have access to Endone if I really need it. My doctor was not happy with me being on it as it is a drug which you can become reliant upon. Now I only take it if I really have to. I try and avoid it and put up with the pain rather than take Endone. 25. I now take over-the-counter medication; Panadol and Panadeine. I take them regularly. I have bad days often and on these days I would take between 8 to 12 tablets a day. … 28. I continue with hydrotherapy and attending the gym which I do regularly. I pay to this myself and I find this to be of some real benefit to me."[4] [4] PCB 8 – 9.
5 In cross-examination, the plaintiff conceded that his treating general practitioner is now Dr Andrada.
6 Endone is a narcotic analgesic only available on prescription. Through his responses to cross-examination, the plaintiff, amongst other things, asserted that he only took Endone when he was desperate and that he had taken this drug "many times" apparently to treat a range of injuries including the injury to his Achilles tendon, heel, low back, right-hand, both shoulders and head.[5] In re-examination, when invited to do this the plaintiff nominated the injury to his right foot as his worst injury.[6]
[5] Transcript ("TN") 22-23.
[6] TN 60.
7 According to the Psychology Discharge Report completed by clinical psychologist, Ms Blumberg in May 2008,[7] the plaintiff initially presented as suffering from Post-Traumatic Stress Disorder, panic attacks and depressed mood. She has treated the plaintiff since 19 July 2007, both as an inpatient and outpatient. The plaintiff now consults her on a fortnightly basis. In her report dated 20 July 2010 Ms Blumberg reported that the plaintiff’s condition was stabilised and her current diagnoses of Post-Traumatic Stress Disorder "in moderate range", chronic pain/pain amplification syndrome and adjustment disorder with anxiety and depression.[8]
[7] Plaintiff’s Court Book (“PCB”) 16. See also Mental Health (Psychology) Treatment Plan – PCB 18-20.
[8] PCB 63-70.
8 The plaintiff has not been treated by a psychiatrist and he does not take medication to treat any of the conditions to which Ms Blumberg referred.
9 The application is made pursuant to s.93 of the Transport Accident Act 1986 (“the Act”). Subsection 93(6) prohibits me from giving leave unless I am satisfied that the injury in relation to the accident is a “serious injury” which exists at the date of my determination of this application for leave.[9]
[9] see Swannell v Farmer [1999] 1 VR 299 at 310.
10 Relevantly, subsection.93(17) defines “serious injury” as:
“93.
…
(17) (a) serious long-term impairment or loss of a body function; or (b) ...; or (c) severe long-term mental or severe long-term behavioural disturbance or disorder; or (d) ...”[10] [10] s 93(17) Transport Accident Act 1986 (Vic) (“the definition”).
11 Serious injury is determined by considering the consequences of an injury- related impairment or loss of body function or mental or behavioural disturbance or disorder.
12 The injury on which the plaintiff relied was:
(1) serious long-term impairment or loss of function of the right
foot pursuant to paragraph (a) of the definition; and
(2) severe long-term mental or severe long-term behavioural disturbance or disorder pursuant to paragraph (c) of the definition.
13 Under subsection 93(17)(a), the consequences relating to pain and suffering and pecuniary disadvantage of any injury to the right foot must be both “long- term” and “serious” to the plaintiff, that is, when regard is had to these consequences, the injury to the right foot, when judged by comparison with other cases in the range of possible impairments or losses, can be fairly described at least as "very considerable" and certainly more than "significant" or "marked".[11]
[11] Humphreys v Poljak [1992] 2 VR 129, 140.
14 It was common ground that where, as in this case, multiple injuries are suffered, aggregation of a number of impairments to separate body functions is not permitted as proof of serious long-term impairment of a particular body function.[12] In other words the plaintiff must prove that the consequences of physical impairment of his right foot, as distinct from those arising from any injury-related impairment of other body functions are serious.
[12] Ibid, 138.
15 According to the plaintiff, the injury to the right foot consisted of a ruptured Achilles tendon, following repair some residual Achilles tendinosis, soft tissue damage to the right ankle joint and the production of degenerative changes in the ankle joint. Relevantly, the plaintiff also alleged that, as a consequence of this injury, he had developed a limp which caused lower back strain.[13] In his affidavit he deposed that back pain was “killing” him.[14] The plaintiff sought to avoid any aggregation argument relating to separate injury-related impairment of his lower back arising from the accident, by submitting, albeit unsuccessfully, that when measuring the seriousness of the impairment of his right foot, the lower back pain of which he currently complains is a consequence of ongoing impairment of his right foot.
[13] TN5
[14] PCB13. Notably the plaintiff used the same expression when his medico-legal psychiatrist, Dr Weissman assessed him in 2010 emphasising as he no doubt intended to significant pain back– PCB 29.
16 This is an application in which experts on both sides have identified pain amplification. If non-organic factors are the dominant cause of the complaints of pain and disability in the plaintiff's right foot and/or his alleged inability to resume work in real estate as a sub-agent, the plaintiff cannot succeed in this application under paragraph (a) of the definition.[15] Accordingly, the evidence must demonstrate that the symptoms affecting the plaintiff's right ankle are mediated by organic factors and he must identify the extent to which these factors are a cause of right foot symptoms and disability as distinct from any psychogenic factors including any chronic pain syndrome.
[15] Richards v Wylie [2000] 1 VR 79.
17 Without nominating one or the other as the main cause of the pain alleged, through their diagnoses the treating psychologist and the medico-legal psychiatrists distinguished any adjustment disorder mediated by pain and symptoms caused by organic injury from any chronic pain syndrome the latter relating to pain amplification, that is complaints of pain disproportionate to the physical injury.
18 Relevantly, Ms Blumberg saw a connection between the plaintiff’s amplified experience of pain and poor pain management and his reported fluctuations in mood, as well as his reported ruminations about the accident at night.[16] I interpreted her opinion on this as indicating a belief that pain caused by all of the plaintiff’s physical injuries as well as pain mediated by psychogenic factors was affecting his depressive and post-traumatic stress symptoms and in this sense amplified pain contributed both to the reported mental response to injury and to the recurrence of symptoms of the primary psychiatric injury.
[16] PCB 66.
19 As a measure of the seriousness of the right foot injury, in this application, the plaintiff also relied on any secondary mental response to his physical impairment, that is to say, an adjustment disorder with reactive depression,[17] one component of which his senior counsel submitted was the chronic pain syndrome. Indeed, in keeping with this submission, in his final address the plaintiff's senior counsel repeated that functional and non-organic factors were probably a component of any adjustment disorder. However, he did so without specifically addressing the extent to which any chronic pain syndrome was productive of the pain consequences alleged.
[17] Richards v Wylie ibid.
20 Under subsection 93(17)(c), the consequences of the mental or behavioural disturbance or disorder to the plaintiff must be both “long-term” and "severe", the latter being a word which connotes something "of stronger force" than the word "serious".[18]
[18] Mobilio v Balliotis [1998] 3 VR 833, 834-5 and 846.
21 The primary psychiatric injury on which the plaintiff relied was Post-Traumatic Stress Disorder. Even if the diagnosis and the symptoms reported relating to the primary psychiatric disorder are as alleged and ongoing it remains to be seen whether the consequences of the primary psychiatric condition are for the purpose of paragraph (c) of the definition "severe".
The Areas of Dispute
22 The defendant submitted that the multiple symptoms reported by the plaintiff whether resulting from his physical injury or from any injury to his psyche did not meet the serious injury test under paragraph (a) or under paragraph (c) of the definition.
23 Specifically the defendant pointed to:
[19] Which include any secondary mental response to this impairment.
[20] TN 10 – 11.
• the absence of any recent evidence from a treating practitioner in respect to the right foot injury, or evidence from any family member or other witness to corroborate the plaintiff’s claimed restrictions and his assertion that shortly prior to the accident he had arranged to return to work in real estate as a sub–agent. • the indications in the evidence of pain focus; and • the failure in the medical or other evidence to adequately distinguish the consequences of physical impairment of the right foot[19] from those arising from the other physical injury also suffered in the accident or from those arising from the primary psychiatric injury.[20] 24 The plaintiff's credit was challenged.
25 At hearing the plaintiff conceded that he continues to receive a disability pension in respect to neck and psychiatric injury suffered in a transport accident in 1987 ("the earlier accident").
26 Subject to some adjustment for income earned from personal exertion in 2005 and 2006 the plaintiff has received this pension from about 1990. As is evident from my discussion of the evidence in due course, the inference I drew from this was that prior to the accident the plaintiff had continued to present to his treating doctors as being disabled by injury to his neck and psyche arising from the earlier accident.[21]
[21] For instance, this finding is generally supported by the report from general practitioner, Dr Gee to the Transport Accident Commission (“TAC”) on 18 March 2008 in which he noted, amongst other things, that on 17 November 2005 the plaintiff was given a Centrelink certificate with the diagnoses depression and chronic neck pain and that these had been on previous Centrelink certificates. See Defendant's Court Book ("DCB") 554-555.
27 Nevertheless, the medical evidence reveals that a number of doctors either had no apparent understanding that this was so[22] or they were given to understand that prior to the accident any psychological or psychiatric problems were fully resolved[23] and/or he no longer had problems with his neck.[24]
[22] As for example orthopaedic surgeon, Mr Miller who provided the plaintiff's solicitors with his first orthopaedic impairment assessment and report on 27 February 2009 at PCB 48-55 and, whilst I was told in final submissions that the plaintiff did not rely on his report Occupational Health, Rehabilitation and Counselling specialist, Dr Castle who examined the plaintiff at the request of his solicitors on 6 July 2010 and provided a report dated 2 August 2010 at PCB 76-81.
[23] As for example psychiatrist, Dr Weissman who first examined the plaintiff at the request of his solicitors on 23 February 2009 (PCB at 32) and psychiatrist, Dr Hayman who examined the plaintiff at the request of the defendant on 10 October 2008 (DCB at 17 -21).
[24] As for example Mr Miller's final report following re-examination of the plaintiff on 19 May 2010 at PCB 58 and the addendum dated 3 August 2010 at PCB 62c.
28 Having read the material, heard the plaintiff's evidence and viewed a short segment of surveillance film obtained in August 2010, I formed the view that at the very least the plaintiff had repeatedly exaggerated his symptoms and disability and that on occasions he was probably untruthful in the account given by him in his evidence and to doctors specifically in respect to his earlier psychiatric history and treatment. Indeed, as my discussion of their reports summarised below demonstrates many of the doctors probably received unreliable histories on which they based their recommendations for treatment and/or their opinions.
29 I also formed the view that the plaintiff was probably untruthful when he denied earlier investigations and treatment for complaints of lower back pain in 1987, 1992 and 1997 and for complaints of problems with his shoulders, namely rotator cuff tears diagnosed and treated in November 2005.[25] He demonstrated a marked reluctance to acknowledge past complaints and investigation of right foot pain particularly in 1997 when x-rays obtained apparently indicated minor degenerative disease and again in 2000, although without being able to say which foot was involved the plaintiff did recall being diagnosed with gout after he complained to his doctor about his foot.[26]
[25] See cross-examination at TN 23-25.
[26] See cross-examination at TN 26-27.
30 Moreover, even if he limped as he said he unconsciously did, particularly when medication failed to control leg pain,[27] the plaintiff did not satisfy me that impairment of his right foot regularly caused him to limp such that this was a likely cause of organic lower back pain.
[27] See cross-examination at TN 28-29.
31 In these circumstances, I had reservations about the reliability of many aspects of the plaintiff’s evidence and the evidence on which he relied to prove serious injury under either paragraph (a) or (c) of the definition.
32 Accordingly, in determining this application I have considered all of the evidence and, where this conflicted with the plaintiff's evidence, I have preferred the evidence contained in any available records or documents.
The Evidence Called and Tendered
33 Subject to expanding on the evidence contained in paragraph 42 of this, the plaintiff deposed to the accuracy of his recent affidavit. In his further evidence, the plaintiff said that in 2006 he took the drug Levitra a few times to treat a sexual dysfunction problem but stopped using this drug when he felt better and no longer needed it.[28] The plaintiff was cross-examined at length.
[28] TN 12.
34 The material tendered by the plaintiff consisted of his Court Book from which a number of documents had been removed and to which, with the leave of the Court, a copy of a letter dated 14 July 2010 from his solicitors to general practitioner, Dr Andrada was added. There is no report from this treating doctor or affidavit or sworn evidence to explain why this is so. Allowing for its content, the letter was apparently sent to remind the doctor that the plaintiff’s solicitors had not received a report requested in an earlier letter dated 4 May 2010. In my view this correspondence was not sufficient explanation for the absence of any up-to-date evidence from the treating general practitioner.
35 The defendant tendered a Court Book from which numerous documents had been removed. The defendant also tendered a four minute segment of surveillance film obtained on 2 August 2010 and shown during the hearing. I did not find credible the plaintiff’s suggestion during cross-examination that this film, which generally depicted him moving around and walking freely both in the street and in a shopping centre, showed evidence of any abnormal gait.[29] This short segment of film was one of a number of matters to which I had regard in assessing the plaintiff’s credibility and the merits of his application for leave under both paragraphs (a) and (c) of the definition.
[29] TN 41.
The Plaintiff’s Background
36 The plaintiff is 65 years of age. He was born in Greece where he was educated to year nine level. He migrated to Australia at the age of 18. He is married with three adult children and three grandchildren. A 30-year-old daughter still lives at home with the plaintiff and his wife.
37 Based on both his affidavit evidence and responses to cross-examination and re-examination, it appears that prior to the earlier accident the plaintiff had worked as a press operator, fruit picker and in shops. The latter employment involved working in a wholesale fruit shop operated with his brother at Footscray, in a mixed business store in Adelaide and in various food shops in Melbourne.
38 In September 1987 the plaintiff was injured in the earlier accident and he made a damages claim in respect to neck and psychiatric injury, for which he received a substantial damages settlement in about 1990.
39 In cross-examination, the plaintiff agreed that as a result of the earlier accident he complained to his general practitioner about serious anxiety and depression and that since, or just before 1990, as a consequence of his neck and psychiatric injuries he has received a disability pension.
40 Despite being taken to the clinical notes made by two general practitioners working from the same clinic, Dr Gee and Dr Andrada, on both of whom the plaintiff attended for treatment, the plaintiff denied making complaints of anxiety and depression or receiving treatment for any psychiatric condition after early 2000. In re-examination he said he was only prescribed anti- depressants, the name of which he could not recall, for “a few years” and that, in the past he had problems quitting his use of anti-depressants and as a result he had stopped taking these medications years before the accident.[30] The clinical notes tendered contradict parts of this evidence by showing that Dr Gee prescribed Sinequan on 12 September 2005, Dr Andrada prescribed Valium in December 2006 and that when some months prior to the accident in February 2007 the plaintiff consulted Dr Andrada, he was probably already taking amitryptaline, a tricyclic antidepressant medication.[31]
[30] TN 55-56.
[31] See DCB 635, 649 and 650 and TN 15.
41 The only attempt during re-examination to explain the discrepancy between the medical bases upon which he conceded he continues to receive a disability pension and the plaintiff’s various reports to the effect that prior to the accident these earlier injuries were resolved or no longer a problem, was his assertion that Centrelink assess a recipient’s entitlement every 5 years and the plaintiff was unable to recall when he was last assessed.[32] Of course, even if this accurately explains Centrelink’s review system it does not adequately explain why the plaintiff’s treating doctors continued to provide certificates based on these disabilities.
[32] TN 55.
42 In these circumstances, notwithstanding the plaintiff's evidence and reports to some doctors I was satisfied that, apart from treatment for any other conditions, and consistent with the Centrelink certificates provided prior to the accident and mentioned by Dr Gee in his report to TAC in 2008 to which I briefly referred earlier, the plaintiff probably continued to report and receive treatment for depression (including some medication) and chronic neck pain.
43 However, as the plaintiff deposed in paragraphs 16 and 17 of his affidavit, he returned to the workforce for some years from 2003:
"16. In 2002 I felt well enough to return to the workforce. I studied for, and obtained, my real estate sub-agents license from Swinburne University in Prahran. In 2003 I commenced work for Melbourne Business Brokers in St Kilda Road. I enjoyed the work very much as it involved dealing with commercial premises. 17. In 2006 I stopped work to have a trip for four months back to Greece with the intention of returning to work in 2007. In fact, at the time of the accident, I was preparing to re-enter the workforce in real estate."[33] [33] PCB 7.
44 According to the plaintiff, during this period until he ceased his employment as a sub-agent in February 2006, his disability pension was reduced to reflect commissions earned. The Summary of Taxation Returns tendered as part of the plaintiff's Court Book materials indicates that for the financial years ending 2005 and 2006 respectively the plaintiff earned, $8000 and $21,593 gross from personal exertion.
45 In cross-examination the plaintiff said that in 2002 he attended the course at Swinbourne twice a week for a few weeks, although he was unable to recall how long it took from obtaining his licence in 2002 to commencing work in 2003 with Melbourne Business Brokers. Nevertheless, according to his responses in both cross-examination and in re-examination, despite only earning relatively modest amounts, the plaintiff worked every day, although he also said that he had not earned much until he gained experience. This was the reason the plaintiff gave for not being able to recall his earnings in the financial years ending 2003 and 2004, for which no tax returns were submitted or reported in the Summary of Taxation Returns document.[34] I did not find this explanation persuasive.
[34] TN 32 and 57.
46 In these circumstances on this issue I have not inferred, as the plaintiff's senior counsel submitted I should, that the plaintiff earned no commissions in the first 18 months of his work, although I accept that the evidence was consistent with a desire to return to the workforce at least in a limited capacity until he voluntarily left his employment ostensibly, as the plaintiff recounted to some of the doctors and repeated in his affidavit, to travel to Greece.[35]
[35] For instance, Dr Weissman was apparently told that the plaintiff had enjoyed his work as a real estate agent, that in 2006 he had stopped work to return to Greece and, that whilst he had been offered a new position in April or May 2007, he had decided to delay commencing work until the beginning of the 2007 financial year. (PCB 31-32).
47 Notwithstanding the account given for leaving work, at hearing the plaintiff attributed the termination of his employment many months prior to eventually travelling with his wife in Greece between August and December 2006, to his employer having cheated him in the payment of commissions from at least the second and third year of his employment. According to the plaintiff he had put up with this to gain experience.
48 However, in response to cross-examination the plaintiff also said that he delayed going to Greece until August 2006 because his wife wanted to avoid the heat and, on his return in December 2006, he delayed looking for work until after the quiet period for real estate during January/February 2007 ended.
49 I did not find the long period out of the workforce compatible with any apparent intention to remain in the workforce prior to the accident. If he had, as the plaintiff said he had, intended to return to the workforce prior to the accident in July 2007, I did not find the plaintiff's unsupported evidence that he was looking for work and preparing to re-enter the workforce or his denial that he had effectively retired in April 2006[36] persuasive.
[36] TN 30-37.
The Treatment Received
50 Consultant in Rehabilitation Medicine, Dr Widjaja appears to have treated the plaintiff both during and after the plaintiff underwent rehabilitation at The Victorian Rehabilitation Centre. In his report addressed to TAC on 16 May 2008, Dr Widjaja summarised the injuries for which treatment was given prior to the last date on which he examined the plaintiff, 18 April 2008.[37]
[37] DCB 5-8.
51 In summary, Dr Widjaja reported:
•
that the plaintiff underwent inpatient rehabilitation in respect to his right wrist and ankle injuries with the use of analgesics to improve his pain levels;
•
that the plaintiff was commenced on Cipramil after it became obvious that he was suffering from depression and post traumatic stress disorder;
•
that following an acute onset of lower back pain x-ray and CT lumbar spine investigations obtained on 27 July 2007 failed to reveal specific abnormalities, although the pain gradually settled to a manageable level;
•
that on 2 August 2007 the plaintiff was sufficiently improved to be discharged and subsequently reported that he was managing at home;
•
that, amongst other things, the plaintiff continued to report pain around the ankle and "persistent" back pain, although by the end of November 2007, the plaintiff stated that his back continued to be sore but was improving;
•
that the plaintiff continued to complain of some flashbacks and nightmares and he remained in the care of his psychologist;
•
that, after missing a number of appointments, on review in February 2008 the plaintiff continued to complain of the same symptoms with respect to his right ankle and he described persistent lower back pain which was consistently and mainly left-sided;
•
that when he last reviewed the plaintiff on 18 April 2008, the plaintiff reported no recent progress, that his right Achilles tendon continued to be sore, that his back remained the same with left-sided back pain and that he had some right shoulder pain which had settled down. The doctor’s examination on this occasion revealed a good range of movement of the right ankle with pain localised in the ruptured tendon and some left sacral iliac joint tenderness but otherwise little change;
•
his conclusions in response to a series of questions which were not reproduced in the report tendered, to the effect that the reported persistent lower back and right ankle pain had plateaued and the plaintiff was stabilising, that he also suffered from chronic pain syndrome and that once he was more receptive to this, the doctor thought that the plaintiff would benefit from a referral to a pain management program. Ms Blumberg's comments in her only report to which I refer shortly suggest that the plaintiff probably did undergo intensive pain management education from which he told her he had received some benefit.
52 Mr Byrne provided the most recent report from a treating doctor in respect to the plaintiff's physical injuries. This surgeon’s report, dated 5 February 2009, is addressed to the plaintiff’s solicitors, although as he said in this report Mr Byrne last treated the plaintiff on 6 June 2008 when, for the second and last time, he discharged the plaintiff back to the care of his general practitioner.
53 In summary in his detailed report the treating orthopaedic surgeon:
•
noted that over the period from the plaintiff's admission to hospital until 6 June 2008, he treated the plaintiff in respect to both his hand and right foot injuries. In this report he does not mention treatment for any lower back injury and, despite restrictions reportedly due to a limp, any complaint of consequential lower back pain. Were this an ongoing and significant issue I would have expected some involvement of this treating specialist;
• noted that he reviewed the plaintiff's condition on a number of occasions; •
said that on 4 December 2007, notwithstanding ongoing complaints of pain and disability, he advised the plaintiff that the right 5th metacarpal fracture had united and that, having viewed x-ray results which showed no evidence of fracture, advised the plaintiff that a lot of his hind foot and ankle discomfort was due to soft tissue trauma at the time of injury. Prior to discharging the plaintiff back to the care of his general practitioner, the surgeon also appears to have recommended that the plaintiff allow more time for both injuries to settle and, in circumstances where the plaintiff’s ankle remained symptomatic and he still walked with a limp, he also recommended that the plaintiff continue his physiotherapy treatment;
•
said that on 9 May 2008 the plaintiff re-presented, complaining of ongoing right hind foot pain, that he had pain at rest and pain on weight-bearing and that he was still walking with a limp. On examination, the surgeon found that the repair of the ruptured Achilles tendon was still intact and that the wound had healed without problems. A bone scan on 2 June 2008 failed to reveal any significant abnormality in the right ankle. However, an x-ray performed on the same day revealed minor degenerative changes particularly involving the medial aspect of the ankle joint which the surgeon felt was confirmed by the slightly increased activity in the medial aspect of the right ankle on the bone scan. Otherwise he thought that the bone scan and x-ray results were unremarkable;
•
noted that when finally reviewed on 6 June 2008 he had recommended that the plaintiff either undergo an injection of cortisone and local anaesthetic into the ankle joint to expedite his recovery and to improve his symptoms, which included significant soft tissue swelling around the ankle joint and hind foot on the right side or, give the injury, which he said usually took 18 to 24 months to settle, more time to see if it would settle down of its own accord. Mr Byrne gave this advice because he believed that the plaintiff had made a good recovery from the rupture of the Achilles tendon and that the plaintiff's complaints of tenderness were attributable to the soft tissue injury to his ankle joint and some early degenerative changes within the joint. [38] The plaintiff apparently indicated to the doctor that he did not wish to have an injection at that stage, he was advised to continue his regular physiotherapy and he was again discharged back to the care of his general practitioner;
•
thought that the plaintiff had good movement of his wrist and hand and that the prognosis of the fracture was good; and
•
noted that when he last saw the plaintiff his persistent limp and discomfort in his ankle joint, which limited his capacity to stand and walk, prevented a return to work as a real estate agent. However, having not seen the plaintiff for some eight months, when in 2009 he was asked for his opinion on this, not surprisingly the treating surgeon was not able to offer any prognosis concerning the plaintiff’s capacity for employment.[39]
[38] As already noted in these reasons for judgment, in cross examination the plaintiff could not recall any earlier complaints of right foot pain. However, the clinical notes referring to the results of xrays obtained in 1997 indicate that whilst these confirmed the presence of minor degenerative changes in the right foot, at the time there was probably no radiological investigation of the plaintiff’s right ankle.
[39] PCB 23-26.
54 Accordingly, as at the date of his last examination in June 2008 the period over which this type of injury usually settled had not expired, although the treating surgeon was of the view that soft tissue injury to the ankle joint and some early minor degenerative changes were the likely cause of the plaintiff's symptoms.
55 Turning next to the treatment of any further injury to the plaintiff’s psyche, unlike the defendant's medico-legal expert, psychiatrist, Dr Hayman, whose report I discuss shortly, I could not be satisfied from reading their reports that the treating psychologist, or the plaintiff’s medico-legal expert, psychiatrist, Dr Weissman, had the benefit of more than the plaintiff’s account concerning the diagnoses made and treatment and medication received following the earlier accident. In these circumstances, their conclusions have carried less weight than they might otherwise have. I will give examples of how this impacted on their findings in my summaries of their evidence below.
56 Ms Blumberg's report dated 20 July 2010 is her only report concerning treatment of any injury to the plaintiff's psyche arising from the accident. Relevantly, in this she confined her discussion of what she understood[40] to have been “Major Depression” caused by the earlier accident to its potential effect on the severity of any Post-Traumatic Stress Disorder following the accident and to its role in explaining the plaintiff's claimed aversion to psychotropic medication which he reported had not cured him in the past and from the use of which he had trouble weaning himself off.
[40] The impression I formed was that the psychologist’s understanding of the plaintiff's pre-accident psychiatric history was primarily informed by his reports.
57 In her report, amongst other things, Ms Blumberg:
•
said that when in July 2007 she first treated the plaintiff as an inpatient at the Victorian Rehabilitation Centre, his levels of anxiety and arousal were very high, although following discharge in March 2008 and with the passage of time symptoms such as flashbacks during the day and panic attacks had ceased, his depressed mood was in the mild to moderate range and he continued to experience pain as amplified and to manage pain poorly.
•
noted that she treated the plaintiff on a weekly and, more recently, on a fortnightly basis for symptoms of Post-Traumatic Stress Disorder. Based on his reports these symptoms include ruminating about a foreshortened future, regular nightmares, avoidance of the site of the accident, an inability to drive himself for more than 40 minutes to an hour, hypervigilance, avoidance of motorways, feelings of agitation and panic due to traffic noise and avoidance of travel as a passenger because he can only tolerate short periods as a passenger in a vehicle. However, Ms Blumberg also said that with ongoing therapy the plaintiff's levels of arousal and anxiety have reduced and she now describes the post- traumatic stress condition as being in the "moderate range";
•
indicated that, despite expressing his concerns about becoming dependent on medication, for a period of a few weeks prior to his discharge on 2 August 2007 the plaintiff was treated with daily doses of Cipramil, an antidepressant medication. As I have already mentioned based on the plaintiff's account she attributed his aversion to medication to his difficulty in the past in weaning himself off this medication and to his belief that it had not cured him. From these circumstances she opined that medication probably would not have helped the plaintiff this time. However, allowing for the recommendation made by both medico-legal psychiatrists to the effect that the plaintiff again consider pharmacotherapy to help reduce his reported symptoms,[41] as well as the general practitioners’ clinical notes which indicated likely ongoing and intermittent prescription of Valium and antidepressant medication prior to the accident, I was not satisfied that this opinion was based on a sound or well-informed understanding of the plaintiff's earlier psychiatric history and treatment;
•
stated that despite her understanding that there was no loss of consciousness or head strike recorded in the admission notes, the plaintiff's complaint of symptoms such as an inability to smell and taste food may have indicated a head injury. Evidently, at the time the doctors at The Victorian Rehabilitation Centre did not consider that a neuropsychological assessment was warranted and, due to her ongoing contact with the plaintiff this psychologist was asked to monitor the reported loss of smell and taste to determine whether these were a function of the plaintiff depressed mood. These matters notwithstanding, for the purpose of this application were the plaintiff's unverified claim to have suffered a blow to the head and his reported loss of smell and taste[42] considered an appropriate basis for undergoing this, any potential neuropsychological or other investigation, presumably to identify any physiological explanation for this complaint, whether recommended by Ms Blumberg or any other specialist,[43] does not alter the fact that, more than three years after the accident, no credible evidence exists of an organic cause for this ongoing complaint;
•
stated that while still an inpatient, as soon as analgesics were reduced "pain seemed amplified for him", his mood deteriorated, the plaintiff developed chronic pain in his foot and back and in early 2008 his rehabilitation doctor diagnosed chronic pain syndrome. In her opinion, the plaintiff's post-traumatic stress symptoms played some role in the plaintiff's initial refusal to join a pain management group to manage this condition. Nevertheless, as I have already mentioned Ms Blumberg appears to have understood that the plaintiff did undergo intensive pain management education and that by his account he had found the techniques learned helpful, although the plaintiff had also reported that he struggled to stop using analgesics and sometimes resorted to Endone when Panadol did not help;
•
felt that a return to part-time employment which allowed for his physical and emotional limitations would help take the plaintiff's mind off his pain and problems. This finding notwithstanding Ms Blumberg appeared to have understood that there were two matters preventing a return to work in real estate. The primary reason was the plaintiff’s reported fear of and his belief that he may be overwhelmed emotionally by face-to-face situations. His physical limitations including his problems in pain management were she said secondary to this fear.[44] Nevertheless, as I have already noted I consider the long period out of the workforce to be incompatible with any apparent intention to remain active in the workforce prior to the accident.
[41] See Dr Weissman’s report at PCB 45 and Dr Hayman’s report at DCB 22.
[42] See, for example, paragraph 22 of the plaintiff's affidavit.
[43] As for example, Dr Hayman at DCB 23.
[44] PCB 63-75.
The Plaintiff's Medico-Legal Evidence
58 As I have really mentioned, psychiatrist Dr Weissman assessed the plaintiff on 23 February 2009 and on 30 April 2010 in circumstances where he apparently did not have a detailed history of earlier psychiatric diagnoses and treatment, much less a well-informed understanding of the extent of the plaintiff's engagement in the workforce from 2003 onwards. In this report Dr Weissman also acknowledged that without a current report from the plaintiff’s treating psychologist his report was “possibly incomplete”.[45]
[45] PCB 44.
59 Evidently, he too proceeded on the basis that any depression suffered by the plaintiff following the earlier accident had fully resolved prior to the plaintiff working for around three years as a real estate agent. As a consequence, apart from noting some likely pre-existing vulnerability to psychiatric problems, in assessing the plaintiff’s psychiatric impairment Dr Weissman failed to make any apportionment for pre-existing psychiatric conditions or impairment.
60 Moreover, when Dr Weissman examined the plaintiff he probably did not understand that even after he had commence working as a real estate agent, the plaintiff was receiving a disability pension in part due to earlier psychiatric injury, or that, as late as February 2007 his treating general practitioner's notes indicated that the plaintiff was probably taking antidepressant medication.
61 In his final report, Dr Weissman reiterated his earlier opinion that the plaintiff was suffering from a moderate chronic Post-Traumatic Stress Disorder directly due to the accident. Dr Weissman also diagnosed a "chronic adjustment
disorder with depressed and anxious mood of moderate intensity or severity"
as a consequence of and secondary to accident related pain, injuries and disabilities, restrictions, limitations and losses. However, he also found the plaintiff to be "somewhat pain-focused with elevated health concerns" and, whilst Dr Weissman did not exclude an organic basis for the plaintiff's pain, he did suggest that there may be psychological, functional and non-organic factors contributing to and amplifying his perception, sensation and experience of pain.
62 Without repeating in full the reasons I have already explained for approaching his evidence in this manner, Dr Weissman's opinion that the plaintiff’s psychiatric prognosis was at best fair and that he continued to suffer a total loss of earning capacity for the future[46] has carried less weight in informing my decision than it might otherwise have.
[46] See generally PCB 44-46.
63 Mr Miller's orthopaedic assessments of the plaintiff's right foot were undertaken in February 2009 and in May 2010. Notably, when he presented for examination in February 2009, the plaintiff walked with an obvious limp. Amongst other things he complained, of pain, discomfort and swelling in his right ankle and hind foot, that when his foot was swollen it caused him to walk with a limp, that he had difficulty with uneven ground and walking long distances and that the symptoms were fluctuating and slowly deteriorating.
64 In 2010, despite finding an improved range of motion in the right ankle, Mr Miller nonetheless felt that the plaintiff’s poor response to operative intervention and ongoing conservative management indicated a "fair/poor" long-term prognosis in respect to the ankle injury and, without specifically mentioning any limp, he also opined that gait disturbance was in part responsible for ongoing musculo-ligamentous strain to the plaintiff's lumbar spine.[47]
[47] PCB 60-61.
65 As I have already indicated, based on all of the evidence and having viewed the short segment of film shown during the hearing, I was not satisfied that the plaintiff continued to be afflicted by any or any regular gait disturbance or that there was evidence of any ongoing deterioration in the condition of the plaintiff's right ankle to contradict Mr Byrne's expectation that the injury to this lower limb would settle within 18 to 24 months of the accident. It follows from this finding and from the evidence generally concerning any lower back injury resulting from the accident, that I was not persuaded that if, indeed, these were requirements of working as a real estate agent, ongoing impairment of the plaintiff's right foot caused or contributed in any meaningful way to the restrictions Mr Miller envisaged on, for example, prolonged standing or on walking.
66 In his final submissions, senior counsel cited the fact that it concentrated on a lower back injury as the reason the plaintiff no longer relied on the report of Occupational Health, Rehabilitation and Counselling specialist, Dr Castle dated 2 August 2010.[48]
[48] PCB 76-81.
67 Having read this report it clearly focuses on the plaintiff's complaint of a very painful lower back which he claimed woke him at night. If accurately recorded, by his account the pain was worsened by walking up to 30 minutes and it prevented him from sitting for more than 10 to 20 minutes.
68 If anything, these recent reports reinforced my concern that there is a strong functional component to the complaints of physical pain and disability in the application made under paragraph (a) of the definition and that in addition to this the plaintiff never sufficiently established the extent to which as distinct from other physical injury, any organically mediated pain and disability in his injured right foot contributed to any consequences or psychological response.
The Defendant’s Medico-Legal Evidence
69 Dr Hayman's report indicates that when he psychiatrically assessed the plaintiff on 10 October 2008, he had access to material relating to the plaintiff's psychiatric diagnoses and treatment following the earlier accident. This allowed the psychiatrist to question as he did the plaintiff's poor recollection and understanding of his past psychiatric treatment.
70 For instance, despite the plaintiff denying that he suffered any symptoms of Post-Traumatic Stress Disorder following the earlier accident, Dr Hayman observed that in August 1992, a psychiatrist reported that the plaintiff was being treated with Sinequan for chronic Post-Traumatic Stress Disorder with symptoms of depression and that even after five years he remained considerably disabled by his psychiatric symptomatology. He also took into account the comments of an orthopaedic surgeon in April 1992, noting as he apparently did, that the changes in the plaintiff's lifestyle following the earlier accident were largely due to depression associated with his condition following this accident and not being able to work at the rate he was used to.[49]
[49] DCB 20-21.
71 According to Dr Hayman the plaintiff had developed some mild features of a post-traumatic stress disorder following the accident. The matters he weighed in reaching this conclusion included the reports of heightened awareness when in cars, of hypervigilance as a driver, although Dr Hayman also noted that the plaintiff was not "avoidant per se", of often thinking about the accident and worrying that another one may occur and the plaintiff’s report that approximately once a week or occasionally twice a week he has nightmares involving "the black car" coming and hitting him.[50]
[50] DCB 19 and 21.
72 Dr Hayman also diagnosed a chronic pain syndrome which he considered to be “a major focus of his life”,[51] and he found evidence of an adjustment disorder with depressed and anxious mood. The factors mentioned to the psychiatrist which appear to relate to the adjustment disorder included complaints that the plaintiff's mood was depressed, although his concentration and memory was intact, that the plaintiff often did not wish to socialise, although he is still able to go out, that at times the plaintiff thought life was not worth living, although he reported enjoying his children and his grandchildren, that there were variations in the plaintiff's appetite and that his libido was diminished, although he still enjoys sexual relations.
[51] DCB 21.
73 Dr Hayman did make some allowance in his assessment of the plaintiff's psychiatric impairment; that is 3%, for pre-existing psychiatric impairment relating to the earlier accident. In my view, had this psychiatrist also considered the evidence of medication prescribed, even after the plaintiff commenced working as a real estate agent, and the evidence of the Centrelink certificates supplied by a treating general practitioner in respect to psychiatric and physical sequelae to the earlier accident, I expect that he may have revisited the allowance he made for any pre-existing psychiatric impairment.
74 Orthopaedic surgeon, Mr Shannon assessed the plaintiff on behalf of the defendant in October 2008 and again in March 2010. Relevantly he was given to understand by the plaintiff that apart from a whiplash injury to his neck, the plaintiff suffered no other significant injury as a consequence of the earlier accident and that in respect to the accident, apart from ongoing pain in the heel and limited movement of his right ankle he was also suffering from significant low back pain.
75 Mr Shannon also appears to have engaged in discussion with the plaintiff concerning his right shoulder which in October 2008 the plaintiff reported had reverted to its previous level of discomfort. This appears to have been a reference to his earlier shoulder problems and x-ray and ultrasound investigations which in November 2005 showed bilateral supraspinatus tears.
76 When Mr Shannon examined the plaintiff in October 2008 he noted 2 cm wasting of the right calf which he attributed to the Achilles tendon rupture. However by March 2010 he noted no significant wasting of the lower leg, a clinical finding he thought suggested that the plaintiff was now "walking fairly normally".[52]
[52] Relevantly the normal gait depicted in the film shown at hearing lends weight to this finding.
77 According to Mr Shannon who had previously viewed an earlier CT scan of the plaintiff's lumbar spine, which he said demonstrated a central bulge at the L5-S1 level, the plaintiff’s ongoing problem related to his lower back the movement of which was restricted due to aggravation of degenerative change. He did not believe that the plaintiff was significantly limited by his physical injuries in the activities of daily life.[53] In these circumstances, Mr Shannon's opinion that the plaintiff was limited in his performance of physical work but capable of light work including real estate sales is probably in the main attributable to impairment relating to any lower back injury rather than any ongoing impairment of the plaintiff's right foot.
[53] DCB 50.
The Injuries Suffered
78 For the purpose of this application it was common ground that as a result of the accident the plaintiff ruptured the Achilles tendon in his right foot. When last examined in his treating orthopaedic surgeon’s opinion the plaintiff had made a good recovery from the repair of the tendon and his complaints of tenderness were probably attributable to soft tissue injury to the ankle joint and to some early minor degenerative changes in the joint.
79 Dr Widjaja's report confirms that in July 2007 plaintiff was also treated for an acute episode of lower back pain. The more recent interpretation by orthopaedic specialists, Mr Miller and Mr Shannon of the CT scan results obtained at that time evidence likely degenerative changes in the plaintiff's lumbar spine.
80 Both these specialists felt that the plaintiff had also suffered a soft tissue injury to his lower back as a result of the accident. No doubt influenced by the plaintiff's complaints of pain and restriction Mr Miller appears to have accepted that the plaintiff continues to suffer from "significant symptoms"[54] in his lower back due to muscular-ligamentous strain and that gait disturbance contributes in part to his symptoms. However, Mr Shannon's clinical findings in 2010 indicate that if there are ongoing problems caused by any lower back injury, these are probably due to aggravation of degenerative changes rather than any ongoing gait disturbance.
[54] PCB 53.
81 Accordingly, apart from my reservations about any physical cause of the extensive restrictions and pain the plaintiff attributed to both his right ankle and lower back injuries, he did not satisfy me that any gait disturbance arising from injury-related impairment of his right foot continues to contribute to any organic lower back pain. In these circumstances, any ongoing lower back symptoms or restrictions caused by these symptoms are not relevant to the determination of serious injury under paragraph (a) of the definition.
82 For the purpose of this application it was also accepted that as a result of the accident the plaintiff probably suffered a primary psychiatric injury, namely Post-Traumatic Stress Disorder. Having regard to all of the evidence I formed the view that subject to issues of credit there may have been pre-existing psychiatric impairment which because of the inadequate and unreliable histories received by the specialists has not been adequately addressed in the treating or medico-legal reports.
83 In any event, the primary psychiatric disorder diagnosed and treated following the accident is currently described by these specialists as "mild" or "moderate".
84 A chronic pain disorder or pain focus is an ongoing diagnosis reflecting as it does a disproportionate pain response together with an adjustment disorder with depressed mood and anxiety.
85 However, as my discussion below of the alleged consequences under paragraph (c) of the definition reveals I also formed the view that the plaintiff probably sought to advance this application by exaggerating the level of his symptoms and his mental responses to the accident.
The Consequences Alleged
86 These were generally set out in paragraphs 20 to 54 inclusive of the plaintiff's affidavit, with some elaboration and clarification provided through his responses in cross-examination and in re-examination. Relevantly, the affidavit evidence failed to draw consistent and clear distinctions between the consequences of other physical injuries allegedly suffered in the accident and the consequences alleged to arise from impairment of the plaintiff's right foot and any secondary mental response to this impairment including any chronic pain syndrome. The affidavit evidence also failed to clearly separate the alleged consequences relating to the adjustment disorder and chronic pain syndrome from those relating to the primary Post–Traumatic Stress Disorder.
87 During final submissions, lists of primary psychiatric complaints and secondary psychiatric complaints were handed to the court by the plaintiff's senior counsel. These lists purported to isolate and summarise the psychiatric complaints. Of course the attempt in final submissions through these lists to characterise various symptoms apparently drawn from the plaintiff's affidavit evidence and various medical reports as either evidence of primary or secondary psychiatric complaints is not itself evidentiary.
88 In determining what consequences are appropriately taken into account under either paragraph (a) or (c) of the definition apart from their relevance to any alleged consequences, adjustment disorder or chronic pain syndrome I have tried to isolate the affidavit[55] and other evidence given concerning the conditions affecting the plaintiff’s lower back, shoulders and right-hand and the loss of smell and taste he attributed to a blow to his head.
[55] PCB 8-11.
89 In summary, the plaintiff alleged consequences specifically relating to the right foot injury, in the following areas:
•
Pain. The plaintiff deposed that he suffered from a very painful lower back and right Achilles/heel. The pain varied in intensity but it was constant and daily.
•
Treatment. In my introduction to this judgment I outlined the plaintiff's reported treatment regime. This involved regular use of over-the-counter medication, such as Panadol and Panadeine. The plaintiff deposed to often having "bad days" on which he took eight to 12 tablets a day and he told the Court that he had taken Endone many times when he was desperate. However, the plaintiff did not discriminate between the various conditions for which he took this medication when, in cross-examination, he agreed that he used this medication to treat pain from a range of injuries which included the right foot, head, both shoulders, right-hand and lower back injuries. The plaintiff also deposed to massaging his foot each night in a bucket of warm water to relieve some of his pain and to undergoing hydrotherapy and attending gym regularly. He said that he paid for these services from which he felt he derived “real” benefit. In these circumstances I have proceeded on the basis that this treatment regime was directed to all physical injuries. However, in view of my concerns about his evidence generally, the plaintiff's strong pain focus and the absence of any significant pathology to support this complaint, I was not satisfied that the plaintiff suffered from constant and daily pain in his right foot or that he required the use of regular painkilling medication or intermittent use of a narcotic analgesic for treatment of pain arising from long-term tendon, soft tissue damage or degenerative changes to his ankle.
•
Pecuniary loss consequences. The plaintiff deposed to a physical inability to cope with a return to work in real estate. As to his right ankle, he deposed to experiencing pins and needles in his right foot, daily swelling in the Achilles area, particularly by the evening and swelling and severe pain in his right foot and ankle if he walks too much. However, a proper assessment of any pecuniary loss consequence requires consideration of the allegations made particularly with regard to ongoing lower back pain. For instance, the plaintiff deposed that if he sat too long his back hurt, although he thought he could probably walk about a kilometre before he had to have a break and he used heat packs in the evening to try and ease this pain. The plaintiff also deposed to not being able to drive for too long because of the physical discomfort it caused and to having to avoid excessive bending, twisting and stooping because these actions aggravated back pain. As I have already noted the phrase he used to describe his back pain was that it was "killing" him. Nevertheless, in cross-examination the plaintiff agreed that he continued to drive around Melbourne to visit his grandchildren and to go to the supermarket. He also said that driving for an hour was “no problem” and that last Christmas he drove his wife to Phillip Island, a journey of “maybe an hour and 20 minutes, something ”[56] and that a couple of weeks prior to the hearing they were driven by a friend to Ballarat.[57] In view of my concerns about the plaintiff's evidence, his strong pain focus and particularly the recent orthopaedic evidence I was not satisfied that the plaintiff suffered daily swelling in his right foot, that he was disabled by any right foot impairment to the extent alleged or that, if minded to do so, long-term impairment of the plaintiff's right foot precluded a return to work as a sub-agent.
•
Recreational activities. I note that when Mr Shannon examined the plaintiff in October 2008 he was given to understand that the plaintiff had not resumed any significant sporting activities since the earlier accident.[58] This notwithstanding, in July 2010 the plaintiff deposed to being unable to run and to avoiding sports due to his right ankle. For instance, he claimed that he previously enjoyed playing soccer with his grandchildren each of whom had played soccer from the age of 7,[59] although he also deposed to taking them (presumably by car) to soccer training where he watched them play. However, the plaintiff deposed that his injury prevented him from playing with his grandchildren because he was unable to run around and if he tried to kick or pass the ball with his right foot he said it "would be" very painful. The plaintiff also said that he was no longer able to play tennis with his wife and daughter, with whom he had previously enjoyed playing tennis every few weeks at courts in Clayton Road. The plaintiff deposed that he had not returned to playing tennis and did not think he could because he was unable to move about properly. In cross-examination he said that, despite being a disability pensioner he still played tennis for fun.[60] Having not previously explained which of his injuries prevented this, in re-examination the plaintiff nominated sensitivity in his right foot injury as preventing him from playing tennis (and it seems soccer).[61] Allowing for Mr Shannon's report, and the pre-existing shoulder injuries (bilateral supraspinatus tears)[62] for which in 2005 the plaintiff received treatment and a referral from Dr Gee to a musculoskeletal physician, I had reservations about his claim to have played tennis or any other sport such as regularly kicking a soccer ball with his grandchildren in the years prior to the accident.
•
Restrictions. The plaintiff deposed to a limited ability to carry items over five kilograms. He attributed this to his "back, shoulders and foot". Without identifying which or which combination of his physical injuries if any restricted this activity, the plaintiff also deposed to restrictions on his gardening activities. In all, I had some difficulty in understanding how any long-term physical impairment of the plaintiff’s right foot prevented the plaintiff from carrying items exceeding 5 kg or from undertaking gardening activities.
•
Social activities. The plaintiff deposed to avoiding dancing for more than short periods because he was concerned about injuring himself further. The plaintiff claimed that he and his wife used to really enjoy dancing. However, in this regard the plaintiff again failed to identify which or which combination of his physical injuries if any gave rise to this concern.
[56] TN 43.
[57] See TN 38-39.
[58] DCB 15.
[59] Who were now aged 10, 12 and 13 years respectively.
[60] TN 44.
[61] TN 60.
[62] Despite the plaintiff denying prior shoulder problems, in the August 2010 addendum to his reports Mr Miller also confirmed his opinion that there was pre-existing right shoulder pathology – PCB 62c.
90 In his affidavit and in cross-examination and re-examination the plaintiff also alleged mental consequences which in the context of all of the evidence are likely to be attributable to post-traumatic stress disorder and/or to any adjustment disorder and reactive depression, These included:
•
Generally waking up in the morning with what the plaintiff thought was a stress-related headache.
•
Despite the report to the contrary Dr Hayman said he received, reduced concentration levels and poor memory.
•
Fortnightly treatment by Ms Blumberg for Post-Traumatic Stress Disorder and depression.
•
Anxiety and stress as a driver/passenger and tension headaches because of the stress of driving. The plaintiff deposed to managing about an hour in the car driving himself but said he found it more stressful if another person was driving. The plaintiff also deposed to having recently been:
“40. …physically shaking when a semitrailer passed me. I feel that I may be driving too slowly and a lot of people frequently are beeping me. This only adds to my anxiety.”[63] [63] PCB 11.
•
I have already mentioned the responses given in cross-examination where the plaintiff said that he drove to Phillip Island last Christmas. He also said that he had felt shaky during this trip when a semitrailer came close to him.[64] The impression I gained was that the plaintiff drove himself around regularly. However, he reported difficulty being in a motor vehicle whether driving to his daughter's place, 15 minutes from his home, to Phillip Island or to Ballarat because of his fear of having another accident and his tendency to “brake every five minutes”[65] as a passenger.
•
Continued nightmares about the accident and an avoidance of the location at which it occurred.
•
Having previously gone dancing and to events with his wife the plaintiff deposed that he now could not cope with lots of people and sat outside because he became claustrophobic and stressed inside.
•
An inability to cope mentally with real estate work. For instance, he said that he felt:
[64] TN 53, 58.
[65] TN 58-59.
"29. …depressed frequently. I am constantly tense, irritable and with my poor memory and concentration, I can become impatient. I do not believe I could manage a client properly in a business environment.”[66] [66] PCB 9.
•
These matters, his tendency to avoid social situations and anxiety when interacting with other people and the pain amplification syndrome, generally described in Ms Blumberg's report, all suggest that, were the mental consequences of injury-related impairment such that they precluded a return to work as a real estate sub-agent, any long-term Post- Traumatic Stress Disorder probably does not make a material contribution to the alleged pecuniary loss consequence. However, the plaintiff also deposed that to help ease his depression and in keeping with his psychologist's recommendation to get out of the house he spends a lot of time with his son and a daughter who "have had shops" and whilst with them he has helped these children "with minor things".[67] For instance, in cross-examination, the plaintiff said that he previously helped a daughter who, until she sold it a couple of months earlier, had operated a mixed grocery food business, for three and a half days each week. This apparently involved helping sell to customers, moving stock from out the back onto shelves in the shop and sweeping for “Maybe a couple of times a week”, “Maybe a couple of hours, two or three hours.”[68]
•
The plaintiff also agreed that he helped in his son’s food distribution warehouse which, until it was sold last year or earlier this year, supplied shops with frozen food stuffs. In cross-examination, the plaintiff conceded that he helped hand load smaller produce delivered and picked up by trucks and whilst he denied driving this to load produce the plaintiff nevertheless agreed that he used a forklift to unload, but not every day. In re-examination the plaintiff added that he did odd jobs such as sweeping the floor and answering the telephone. At first the plaintiff said that he helped his son 5 days a week. However, he subsequently corrected this to once or twice a week for a couple of hours.[69]
•
In re-examination, the plaintiff explained that he also sat and read the paper when he was at his children’s businesses. These matters notwithstanding and allowing for the plaintiff's earlier work history, I formed the view that, until these were sold recently, the plaintiff probably regularly and actively participated in his childrens’ food and wholesaling businesses.
•
The plaintiff also referred to sexual dysfunction since the accident citing "far more" difficulty in his intimate life with his wife and a reduced sexual desire for which he has been prescribed Viagra. As I have already mentioned in his evidence in chief the plaintiff acknowledged an earlier sexual dysfunction problem for which he took the drug Levitra until he no longer needed it. In the absence of evidence from his treating general practitioner I was not able to determine the nature and the extent of any relationship between any alleged further sexual dysfunction and the accident.
[67] PCB 10.
[68] TN 51-52.
[69] TN 48-50.
Findings
91 To summarise then, based on all of the evidence and in particular the evidence of the plaintiff's strong pain focus I was not satisfied that organic factors were the dominant cause of the plaintiff's complaints of ongoing pain and disability in his right lower limb and, for this reason, his application under paragraph (a) of the definition must fail. However, if I am wrong in this finding, the application under paragraph (a) is unsuccessful because when judged by comparison with other cases in the range of possible impairments or losses, any consequences of the repair of the ruptured tendon, ongoing soft tissue damage and/or degenerative changes in the plaintiff’s right lower limb cannot be fairly described as at least "very considerable".
92 In measuring the seriousness of the injury to the plaintiff’s right lower limb, to the extent that I was able to be satisfied that some or all of these were attributable to an adjustment disorder with anxiety and depression I made some allowance for secondary mental response to impairment of this body function. However, based on all of the evidence and for the reasons already articulated I formed the view that non-organic factors were largely responsible for the level of pain and disability reported.
93 The plaintiff continues to suffer from a range of post-traumatic stress symptoms. His condition is reportedly stabilised although his symptoms may persist into the future, particularly in circumstances where the plaintiff has declined medication and psychiatric treatment and he suffers from a pain amplification syndrome. Nevertheless, allowing for my assessment of the evidence and, even were I to give full weight to the treating psychologist's opinion that the symptoms are in the "moderate range", objectively speaking, the plaintiff did not satisfy me that alone or in combination the range of symptoms summarised whether in his evidence, to the treating psychologist and to the medico-legal experts and the impact of any Post-Traumatic Stress Disorder could be fairly characterised as severe.
Orders 94 In these circumstances, I propose to make an order dismissing the applications for leave under paragraphs (a) and (c) of the definition. I will hear from the parties as to the making of appropriate orders.
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