Jovanovic v Catalyst Recruitment Systems Pty Ltd

[2010] VCC 457

IN THE COUNTY COURT OF VICTORIA Revised

(Not) Restricted

AT MELBOURNE
CIVIL DIVISION

SERIOUS INJURY

Case No. CI-08-01520

MLADJAN JOVANOVIC	Plaintiff
v
CATALYST RECRUITMENT SYSTEMS PTY LTD AND ORS	Defendants

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JUDGE:	HIS HONOUR JUDGE PARRISH
WHERE HELD:	Melbourne
DATE OF HEARING:	21 and 22 January 2010
DATE OF JUDGMENT:	21 May 2010
CASE MAY BE CITED AS:	Jovanovic v Catalyst Recruitment Systems Pty Ltd
MEDIUM NEUTRAL CITATION:	[2010] VCC 0457

REASONS FOR JUDGMENT

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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985, Section

134AB(37)(a) and (c) – hernia condition – whether “serious injury” – unrelated knee injury.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A.J. Keogh SC with	Drakulic Lawyers
Mr M.T. Schulze
For the Defendants	Mr P.B. Jens	Lander & Rogers
HIS HONOUR:

1 By way of Originating Motion dated 17 April 2008, Mladjan Jovanovic (“the plaintiff”) seeks leave pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985, as amended (“the Act”), to bring common law proceedings to recover damages for an injury suffered by him over the period from 20 October 1999 to December 2001 (“the injury”) during the course of his employment with Catalyst Recruitment Systems Pty Ltd (“the defendant”).

2          The plaintiff seeks leave to bring proceedings for “pain and suffering damages” and “pecuniary loss damages” within the meaning of s.134AB(37) of the Act.

3          The application was heard over two days, and the following evidence was adduced:

(a)	The plaintiff and Dr M. Brkic, the treating general practitioner of the plaintiff, gave oral evidence and were cross-examined;
(b)	The plaintiff tendered pages 6–16, 34–73, 74–79, 83–108G, 113–116, and 156 of the Plaintiff’s Court Book (“Exhibit 1”);
(c)	The defendant tendered the following evidence:

(i)     pages 13–48 and 54–60 of the Defendant’s Court Book (“Exhibit A”);

(ii)    letters from Mr Cass to Dr Brkic dated 7 June 2006, 30 June 2006, and 2 July 2006 (“Exhibit B”);

(iii)   medical report from Mr Kevin King dated 17 July 2005 (“Exhibit C”);

(iv) note of Dr Brkic dated 14 April 2008 (“Exhibit D”).

Relevant Legal Principles

4          The court must not give leave unless it is satisfied on the balance of probabilities that “the injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in s.134AB(37) of the Act: (see s.134AB(19)(a) of the Act).

5          The plaintiff relies principally on paragraph (a) but also on paragraph (c) of the definition of “serious injury” contained in s.134AB(37) of the Act.

Those paragraphs reads:

“serious injury means—

(a)	permanent serious impairment or loss of a body function; or
...

(c) permanent severe mental or permanent severe behavioural

disturbance or disorder; ...”

6          The part of the body said to be impaired for the purposes of paragraph (a) is the abdomen through recurrent herniae. The mental or behavioural disturbance or disorder for the purposes of paragraph (c) is an adjustment disorder with anxiety and depressed mood.

7          In order to succeed, the plaintiff must prove on the balance of probabilities that:

(a)	“the injury” suffered by him arose out of, or in the course or due to the nature of, his employment with the defendant on or after 20 October 1999: (see s.134AB(1) of the Act and Barwon Spinners Pty Ltd and Ors v Podolak (2005) 14 VR 622, at paragraph [11]);
(b)	the “injury” and the resulting impairment (paragraph (a)) and/or the mental or behavioural disturbance or disorder (paragraph (c)) must be “permanent” – that is, permanent in the sense that it is “likely to last for the foreseeable future”: (see Barwon Spinners (op cit), at paragraph [33]);
(c)	the “consequences” to the plaintiff of the low-back impairment in relation to “pain and suffering” or “loss of earning capacity” must be “serious” – that is, “when judged by comparison with other cases in the range of

possible impairments ... fairly described as being more than significant or

marked, and as being at least very considerable”: (see s.134AB(38)(b)

and (c) of the Act) (my emphasis);

(d) the “consequences” to the plaintiff of the mental or behavioural disturbance or disorder in relation to “pain and suffering” or “loss of earning capacity” must be “severe” – that is, “when judged by

comparison with other cases in the range of possible mental or behavioural disturbances or disorders, as the case may be, fairly

described as being more than serious to the extent of being severe”:
(see s.134AB(38)(b) and (d) of the Act) (my emphasis);

The test for “serious” and “severe” is set out in paragraphs (b), (c) and (d) of s.134AB(38) of the Act and is sometimes referred to as the “narrative test”.

8          In addition, in relation to “loss of earning capacity consequences”, the plaintiff has a specific burden (see s.134AB(19)(b) and (38)(e) of the Act) to establish:

(a)	that as at the date of hearing the plaintiff has a loss of earning capacity of 40 per cent or more, measured (subject to certain irrelevant exceptions) as set out in paragraph (f) of s.134AB(38) of the Act: (see s.134AB(38)(e)(i)); and
(b)	that after the date of hearing the plaintiff will continue permanently to have a loss of earning capacity which will be productive of a financial loss of 40 per cent or more: (see s.134AB(38)(e)(ii)).

9          In determining the application, the court:

(a)	must make the assessment of “serious injury” at the time the application is heard: (see s.134AB(38)(j) of the Act);
(b)	notes that it has been observed that the question of whether any injury satisfies the definition of “serious injury” is largely a question of impression and value judgment: (see Kelso v Tatiara Meat Company Pty Ltd (2007) 17 VR 592 at 628; Sabo v George Weston Foods [2009] VSCA 242 at paragraph [67]);
(c)	must not take into account psychological or psychiatric consequences of “the injury” for the purposes of paragraph (a) of the definition of “serious injury” – these can only be taken into account for the purposes of paragraph (c) of the definition of “serious injury”: (see s.134AB(38)(h) of the Act);
(d)	notes that s.134AB(38)(b) of the Act provides that the consequences of an injury and impairment in terms of “pain and suffering” and “loss of earning capacity” are to be considered separately. In the event that a worker satisfies sub-paragraph (i) but not sub-paragraph (ii) of s.134AB(38)(b) of the Act, a worker is entitled to have leave to bring proceedings for the recovery of “pain and suffering damages” only. A worker who satisfies the loss of earning capacity requirements of s.134AB is entitled, as a “matter of statutory construction”, to have leave to bring proceedings for both “pain and suffering damages” and “pecuniary loss damages”: (see Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170 delivered by the Court of Appeal on 28 July 2009, and in particular at paragraph [60]–[64]);
(e)	must give reasons which are extensive and complete as the court will give on the trial of an action, and in so doing disclose the pathway of reasoning in dealing with the evidence and the issues raised by the application: (see s.134AE of the Act and Church v Echuca Regional Health (2008) 20 VR 566, at paragraphs [89]–[92]).

The Issues

10        Counsel for the defendant informed the court that there was no issue that the plaintiff had suffered a compensable hernia condition that required four bouts of surgery paid for by the defendant (or its agent). Essentially, the issue was, as assessed as at today’s date, whether such injury was “serious” – particularly so in relation to “loss of earning capacity”. (See T12 L11–24 and T111 L23–27.)

The Plaintiff, his Injury and Treatment

11        The plaintiff adopted his two affidavits, sworn respectively on 28 November 2007 (found at p.6 of Exhibit 1), which I shall refer to as the “first affidavit”, and on 6 August 2009 (found at p.11 of Exhibit 1), which I shall refer to as the “second affidavit” as “true and correct” (see T19 L31).

12        By way of his first affidavit, the plaintiff gave the following evidence:

•  He is a 49-year-old (born 4 May 1961) single man who was born in Bosnia and was educated to the age of 18. On leaving school he attended a “traffic school”, performed national service, and then joined the workforce as a “driver”, driving a truck and then a bus. (See paragraph 1 of the first affidavit.)

•  He performed driving work to about 1991 in Croatia, and after civil war broke out in 1992 he “escaped” to Serbia and remained there on a small farm owned by his uncle, before receiving refugee status to migrate to Australia.

•  He arrived in Sydney on 8 January 1997, noting that he had some “hearing reduction” as a result of his war experiences, and in May 1997 he came to Melbourne, where he continued English classes which had commenced in Sydney. He notes that he did not “progress well” in English because of his “hearing problems” (see paragraph 2 of the first affidavit).

•  He commenced employment with Arnott’s Biscuits Ltd on 29 September 1997 as a process manual worker. For the first six months of his employment he was a casual worker in the hand-packaging area, and then he was moved to and remained in the assorted area where his duties mainly consisted of two tasks – the first task involved “lifting boxes filled with biscuits and carrying the boxes to the process line”, and the second task involved “lifting boxes filled with trays, carrying the boxes to the tray machine and feeding the trays onto the tray machine” (see paragraph 2 of the first affidavit).

•  In or about 1998 or 1999 Arnott’s restructured the workforce, and from that point on he, together with other workers, were employed by the defendant, although “the nature of the work and the hours remained the same” (refer paragraph 3 of the first affidavit).

•  Prior to “the injury” he was “establishing well in Australia with a number of friends, and enjoyed fishing and a happy social life”.

•  In paragraph 5 of the first affidavit, he describes the onset of his hernia condition in the following terms:

“In the latter part of 1999 I became aware of a small lump in my abdominal region. I had no symptoms or restrictions. It did not bother me at all and I continued to work. I continued performing the strenuous repetitive manual handling tasks for the long hours each shift, including regular overtime. In 2001 whilst performing this work, the lump progressively increased in size, and eventually became painful and tender. Also in 2001 whilst performing this work, my left knee became painful, though tolerable, with some instability due to the constant regular strain associated with the work duties. The lump reached the stage toward the end of 2001 when on the 21st December 2001, I reported to the first aid officer at Arnott’s and I was directed to seek medical advice. I then made no report relating to my left knee. The size and symptoms from my lump had become a very dominant and concerning problem for me. I was effectively prevented from carrying out my work duties, and this overshadowed the problems with my knee. In any event, it was my belief that my knee problems would subside as they always had in the past. Because of the Christmas period I was unable to obtain an appointment with Dr Pjesivac until the 8th January 2002. He arranged for me to have an abdominal ultrasound on the same day, and upon review advised me of a hernia and the need to see a surgeon. I was referred to Mr Brygel, and consulted with him on 18th January 2002. He informed me of the presence of an epigastric hernia and advised surgery.”

• On 25 January 2002 the Arnott’s plant closed, and he, with other workers, was made “redundant”. Because of his hernia condition he was “then unable to work, and unable to look for other work” (see paragraph 6 of the first affidavit).

• On 8 March 2002 Mr Brygel performed a surgical repair of the epigastric hernia at Monash Medical Centre, inserting mesh for stabilisation purposes. After the surgery, he continued to have problems with pain and tenderness at the surgical site and was reviewed by Mr Brygel twice in April 2002, who advised him that he should “attempt to return to work”. He felt “unable to do so”, and consulted Dr Pjesivac in May and June 2002, who also thought he should try “normal work”. The plaintiff felt unable to work because of the pain and sensitivity.

• He also was developing worsening left-knee pain and swelling, but this was a “far lesser” problem compared to the abdominal injury.

• In late 2002 he consulted Dr O’Toole in relation to his ongoing abdominal problems, and was referred back to Mr Brygel in September 2002, who arranged for him to undergo a gastroscopy on 24 October 2002. On 25 October 2002 a further ultrasound of his abdominal region was performed, and he was diagnosed with “an infection”.

• He continued to have problems with his left knee, and was experiencing “increasing pain with clicking and finding it difficult to negotiate stairways and uneven ground”.

• He was referred to a Mr Tran on 17 May 2003 in relation to his left knee, and was informed that an x-ray undertaken on 25 June 2003 revealed “osteoarthritis”. He underwent an MRI on his left knee on 25 September 2003 and was informed there may well be a tear of his meniscus, and Mr Tran advised arthroscopic surgical repair.

• He consulted a further general practitioner, Dr Brkic, at the end of 2003 for treatment of both his abdominal problem and his left knee. Dr Brkic referred him to Mr Cheng on 8 September 2004 for treatment of his abdominal and epigastric pain and tenderness.

• On 16 October 2004 he had a further hernia repair undertaken by Mr Cheng, and he was “informed” that although he had some herniation, the previously inserted mesh had “shifted”. This surgery provided “no relief of symptoms”, and he continued to have an ongoing “troublesome left knee” (see paragraph 14 of the first affidavit).

• He was reviewed by Mr Cheng on 14 January 2005, and was continuing to have “significant pain in the right side of the incisional scar”, and on 2 March 2005 Mr Cheng performed a further ultrasound which apparently revealed “a small umbilical hernia to the right side of the midline of my scar” (see paragraph 16 of the first affidavit).

• On 6 August 2005 Mr Cheng performed a further surgical repair of the hernia, and the plaintiff was advised that he had found a “defect” at the umbilicus, which had been sutured, with further stabilising mesh inserted.

• Although there was some “small improvement for a little while”, problems recurred, with pain and tenderness with significant restriction around the right side of the wound site. He was medicated with Tramal, Tegretol and temazepam, which made “no difference”.

• On 30 September 2005 he underwent a further ultrasound of his abdomen and was advised that he may have a “haematoma or contusion”, and on 20 October 2005 Mr Cheng recommended that he obtain a second opinion about the “ongoing problem”.

• Dr Brkic referred him to Dr Myers on 15 November 2005, who advised him that he most likely had a haematoma as a result of the last hernia repair, and should use regular Hirudoid on the affected area. He tried this “without much success”.

• Dr Brkic referred the plaintiff to Mr Cass on 29 November 2005, who arranged for a CT scan of the abdominal and pelvic regions, after which he performed a course of injections of local corticosteroid with some local anaesthetic. The four injections which he was given were “ineffective”, and he underwent surgery by Mr Cass, who removed a “neuroma” which was said to be caught in the scar tissue along with a piece of mesh.

• At paragraph 22 of his first affidavit the plaintiff states:

“Through 2006 I remained under Dr Brkic. I had ongoing pain and tenderness over my surgical scar regions, with increased pain on attempted physical activity. I believe I may have overused my right leg in order to compensate for my left knee, and in August 2006 I developed some swelling, pain and discomfort of my right knee, my left knee continued to be problematic, but seemed to be in a stable situation. However, I was not active. Very gradually the exquisite tenderness of my abdominal problem subsided. I still had tenderness and I still had pain and a great deal of discomfort on physical exertion. Activities such as lifting, bending, stretching or reaching caused significant increase in pain. In general I felt very restricted in performing such activities. This situation remains today. I am unable to return to fishing. I am unable to perform physical work. I have not worked since I ceased with Arnott’s in late 2001. I have been unable to work because of my abdominal problems. I believe I would have been able to work with my left knee.”

(My emphasis.)

• He takes medications as required, and is “cautious” in his daily activities so as to not provoke an increase of pain in his abdominal region.

• He has no vocational qualifications, and does not have a motor vehicle, such being repossessed in about 2003. His English is “extremely poor” and he is unable to read or write English in any meaningful way. He has trouble learning because of his lack of English and also because of his hearing deficit.

• At the time of ceasing work with the defendant, he was earning approximately $650 net per week.

13        In the second affidavit, the plaintiff deposes:

•  He continues to attend his general practitioner, Dr Brkic, about once or twice a month, and continues to be prescribed Panadeine Forte and diazepam for pain relief, together with the sleeping tablet temazepam and the anti-depressant Lexapro.

•  He continues to suffer “abdominal pain particularly around the area of the scarring where surgery was performed on four occasions”, and such pain is a “burning pain” with the scarring “sensitive” to touch. In particular, the plaintiff states:

“The pain is made worse by physical activity, particularly things such as bending, twisting and lifting. On occasions the pain is severe. Drinking cold water or eating too much food at one time causes increased pain.” (Refer paragraph 3 of the second affidavit.)

• He continues to suffer intermittent pain with his left knee, which is a “far less serious problem than the hernia problem”. He is on a public waiting list for arthroscopic surgery to the left knee.

• His sleep is “poor”, and he is woken regularly by pain.

• Prior to his hernia pain he led an “active life”, being able to work hard and also enjoy other activities such as “playing table tennis and other sports” and socialising. Because of his injuries, his life is “very limited”.

• He has been unable “to return to any work” and because of the hernia injury he is “not able to return to performing physical work”. (See paragraph 7 of the second affidavit).

• He presently receives the Disability Support pension.

14        The plaintiff also relies on an affidavit from one Radmilo Cakic sworn on 17 November 2009 and found at p.14 of Exhibit 1. In that affidavit, Cakic deposes that he has known the plaintiff for approximately 10 years, during which time they became “friends”, and that he has noticed a change in the “life” of the plaintiff as a result of his abdominal injuries, for which he complains of pain, and for which he takes a lot of medication. Cakic describes the plaintiff as someone who has “suffered a lot of pain”. (See paragraph 4 of his affidavit at p.15 of Exhibit 1.)

15        Mr Maurice Brygel, a general surgeon, has provided a series of reports dated 11 February 2002 (see p.34 of Exhibit 1), 25 February 2002 (see p.35 of Exhibit 1), 13 March 2002 (operation report) (see p.36 of Exhibit 1), 8 April 2002 (see p.37 of Exhibit 1), and 23 September 2002 (see p.39 of Exhibit 1).

16        Mr Brygel consulted with the plaintiff in February 2002 and diagnosed an epigastric hernia which was employment-related. He performed a surgical repair of the hernia on 8 March 2002, following which he made an “excellent recovery” and from which there should be no “permanent impairment” (see p.38 of Exhibit 1). When seen in September 2002, Mr Brygel was of the opinion there was no evidence of recurrence of the hernia.

17        Mr Steve Cheng, a general surgeon, has also supplied a series of reports dated 13 September 2004 (see p.43 of Exhibit 1), 16 January 2005 (see p.49 of Exhibit 1), 2 April 2005 (see p.51 of Exhibit 1), and 21 November 2005 (see p.56 of Exhibit 1).

18        Mr Cheng initially examined the plaintiff on 8 September 2004 and obtained a history that the abdominal symptoms of the plaintiff had “not improved” following the surgery performed by Mr M. Brygel. Clinical examination suggested evidence of a weakness and small defect consistent with a recurrent ventral hernia. On 16 October 2004 Mr Cheng performed further surgery which revealed a small recurrent hernia through a defect in the linea alba artery. The old mesh was replaced.

19        Following this surgery, Mr Cheng notes that the plaintiff’s symptoms did not “completely resolve” and an abdominal wall ultrasound performed on 2 March 2005 reported a likely “small umbilical hernia to the right of the midline”. Mr Cheng performed further surgery on 6 August 2005 which confirmed a small defect at the umbilicus which involved the insertion of further mesh. In his report dated 21 November 2005 Mr Cheng states:

“I saw Mr Jovanovic for post-operative reviews on four occasions. He was feeling better for a while initially but then again complained of persistent pain at the right lower end of the mid line incisional scar. I treated him conservatively.

I last saw Mr Jovanovic for review on 20-10-2005 and his symptoms remained much the same.

On examination the abdominal wall was well healed. There was mild localised tenderness at the right lower end of the incisional scar, but no other abnormality; in particular, there was no evidence of a recurrent hernia clinically.

I am not certain the exact aetiology of Mr Jovanovic’s symptoms. I told Mr Jovanovic that I do not believe there is anything more that I could do and I advised him to seek another surgical opinion if the symptoms persist.” (See p.57 of Exhibit 1.)

(My emphasis.)

20        Mr Anthony Cass, a general surgeon, has provided a series of reports dated 27 January 2006 (see p.58 of Exhibit 1), 30 May 2006 (operation report) (see p.60 of Exhibit 1), and 29 November 2006 (see p.62 of Exhibit 1).

21        Mr Cass initially saw the plaintiff on 29 November 2005 and obtained a history, in part, that following the second bout of surgery undertaken by Mr Cheng, he had had persistent pain in the right side of the repair, approximately four centimetres from the midline scar. An ultrasound undertaken on 30 September 2005 revealed an area of abnormality interpreted as possibly a haematoma or an area of contusion.

22        Mr Cass noted that the plaintiff complained of “exquisite tenderness on the right side of the wound” but he could not detect any recurrence of the hernia, and suspected that he had either nerve entrapment or a neuroma. A CAT scan of the abdomen showed no significant abnormality. Mr Cass initially treated the plaintiff with a series of corticosteroid injections from 7 January 2005 to 10 January 2006, and on 30 May 2006 performed surgery which revealed the probable presence of a neuroma. In the report dated 29 November 2006, Mr Cass states, in part:

“I reviewed Mladjan Jovanovic on 23rd November with his interpreter. He is still complaining of some discomfort although he says this is much better than previously and he does not have the exquisite tenderness. However he says that if he exerts himself he is conscious of discomfort in the region of his wound.

On clinical examination there was no significant abnormality and in particular no recurrence of his hernia. The area of previous concern is still slightly tender but does not have the exquisite tenderness that it once exhibited.

My opinion is that he has made a good recovery and should be able to return to work although heavy lifting, bending and stretching on a repetitive basis would cause him some discomfort. Overall I think this type of work should be avoided. The basis of my opinion is that he does have a mesh in situ and mesh tends to contract in time often causing some discomfort when repetitively stretched.

I consider him fit for work but not for heavy labouring.” (See p.61 of

Exhibit 1.)

(My emphasis.)

23        Dr M. Brkic, the current treating general practitioner of the plaintiff, has supplied a series of reports dated 1 June 2004 (see p.41 of Exhibit 1), 22 November 2004 (see p.47 of Exhibit 1), 14 November 2005 (see p.53 of Exhibit 1), 30 November 2006 (see p.62 of Exhibit 1), and 29 January 2009 (see p.71 of Exhibit 1).

24        The plaintiff consulted initially with Dr Brkic on 3 November 2003 (after his first bout of surgery with Mr Brygel). The reason for the plaintiff’s attendance at that time was ongoing symptoms in his abdomen.

25        When the plaintiff was seen on 15 December 2003, he complained to Dr Brkic of left-knee pain which had been present “on and off since 1990”, and Dr Brkic obtained a history that after 2002 the plaintiff had developed an “acutely swollen painful left knee”. An x-ray of the knee on 20 June 2003 revealed a slightly narrowed knee joint due to early osteoarthritic change, and an MRI scan undertaken on 25 September 2003 suggested a tear of the lateral meniscus.

26        In his report dated 29 January 2009 (which, of course, post-dates all the abdominal surgical procedures), Dr Brkic states, in part:

“Mr Jovanovic’s injuries, both his left knee injury and his hernia injury, have substantially stabilised and have shown no improvement or deterioration for some considerable time.

I believe Mr Jovanovic’s condition is likely to remain essentially the same for the foreseeable future.

I do not believe Mr Jovanovic requires any further surgical treatment for his epigastric hernia, however he does require an arthroscopy on his left knee as a diagnostic as well as a therapeutic treatment option.

I believe Mr Jovanovic is unable to perform his previous employment as he is still significantly affected by pain and discomfort over the scar areas resulting from his previous surgery. He finds all forms of lifting particularly painful, along with bending and twisting of his abdominal muscles as would be required in performing his preinjury duties.

In my opinion, Mr Jovanovic’s residual work capacity to undertake alternative employment is minimal, bearing in mind his lack of formal education and qualifications for work other than heavy manual tasks. His lack of English and his deafness are also significant factors which would prevent him from obtaining any non-manual work. Consequently, he has no capacity for any type of work at all.

The meniscal tear of Mr Jovanovic’s left knee also precludes him from performing his previous employment duties in that it requires him to stand on his feet and bend and lift and consequently twist his knees during such manoeuvres.

Mr Jovanovic has no residual work capacity for alternative employment as a result of his knee injury for similar reasons as stated previously, namely his lack of formal qualifications, poor language skills and deafness, which would preclude him from other non-manual work.

Mr Jovanovic has been significantly compromised in his personal and recreational pursuits as a result of his work-related injuries in that it prevents him performing his household duties properly and prevents him from undertaking longer recreational walks than he would otherwise normally do.”

(My emphasis.)

27        Dr Brkic gave evidence that the aforesaid reports were true and correct “to the best of my knowledge” (T68 L25–27). Under cross-examination, Dr Brkic gave the following pertinent evidence:

• On most occasions that he has examined the plaintiff there is pain over his scar areas, and that is the “main problem” (see T72 L7–10).

• He speaks the native language of the plaintiff (T73 L1).

• The plaintiff “superficially” appears to walk or move normally and sits comfortably (T73 L9–12).

• He examined him the day before (20 January 2010) and the plaintiff was tender “over several areas over both scars” (T73 L21–22).

• The plaintiff has not got any recurrence of his hernia which would be suggested by a defect (T74 L21–22).

• Heavy straining may well be a good check as to whether or not there is a recurrence of the hernia, but not a good way of examining “wound pain” (T74 L26–31).

• After being referred to the reports of Mr Cass (after the removal of the neuroma), Dr Brkic commented “well, generally treating surgeons are optimistic as far as the prognosis of their surgery is concerned” (T79 L9– 11).

I refer to the following evidence in particular at T80 L5–27:

“[Question] In other words, the view of Mr Cass stands there and you have not at any stage determined that you would refer him back to Mr Cass or any other surgeon of that discipline for a review? [Answer] His injuries have substantially stabilised. There has been no demonstrated recurrence of the hernia. The mesh is still in place and by his own admission, Mr Cass has admitted that that may well continue to cause pain and discomfort, and the way I see it is that is exactly what is happening at this stage, despite apparently a very successful surgery by a very competent surgeon.

HIS HONOUR: [Question] By that, the pain he’s suffering now even as late as yesterday in your examination, as far as you are concerned the origin of that pain is what? [Answer:] The repetitive scarring of multiple surgery.

[Question:] Thank you. That pain over time that you’ve treated him?
[Answer:] With the mesh in place.

[Question:] With the mesh in place, yes, and over the time that you’ve treated him and in particular over the last couple of years, the complaints of pain – leaving aside the knee, I’m talking about the hernia problems – the complaints of pain have been localised to that area? [Answer:] Correct, specifically.”

(My emphasis.)

Dr Brkic accepted that a note of 14 April 2008 read:

“Still complains of pain over the site of the scar, burning pain, constant
with chronic pain syndrome.” (See T82 L22–25.)

When queried about the term “chronic pain syndrome” Dr Brkic says he has not referred the plaintiff to anyone for such problem, and also stated:

“His pain is more of a localised physical area. Chronic pain syndrome is better represented when you get chronic diffuse pain in multiple parts of the body with fibromyalgia. An exact classification is very indeterminate and diffuse; his pain is more localised specifically to the wound site; not classical, shall I say.” (See T83 L14–20.)

• He considered that the “abdominal pain and discomfort is the major reason why he can’t return to his previous employment” (T85 L29–31).

• The plaintiff appears to have a similar (to his left) meniscal problem with his right knee (T87 L5–9).

• In response to questions about his knee condition, Dr Brkic stated:

“[Question:] So what I’m putting to you, in writing paragraph 7 and paragraph 8 and it’s not even necessary to combine but when you do, it is unambiguous in your opinion expressed in January 2009, in addition to what I’ll call hernia problems, as a result of his knee problems, he has no residual work capacity for alternative employment? [Answer:] Prior to arthroscopic surgery, yes but following surgery he may well have capacity as far as his knee is concerned.”

• His knee condition “currently” would disqualify him from employment (T90 L17–18).

Cross-Examination of the Plaintiff

28        The plaintiff was cross-examined and gave the following pertinent evidence.

•  In relation to work, he was asked the following questions:

“[Question:] Would you like to be employed? [Answer:] I’m in constant

pain.

[Question:] Are you in pain now? [Answer:] Yes.

[Question:] Whereabouts are you having the pain? [Answer:] Here

(witness indicates) in three spots.

...

[Question] Three spots in a triangular area, perhaps above the navel and above the navel and in the old, a triangle of about three inches from the navel going to the side and up, and then with the hypotenuse.” (See T20 L28–T21 L6.)

• He has no skills with computers (T21 L17–21).

• He is scheduled for an operation for both knees (T22 L28–30).

• Before 2002 he had many speeding fines and was advised by Dr Brkic that “I should not drive” (see T24 generally). He has driven at other times, and maybe for about five days in 2009 (T27 L9–12).

• He has been on the anti-depressant medication Lexapro and diazepam and has had difficulties in concentration (T28 L7–11).

• His main job in Croatia (outside his army service) was work as a driver (T28 L24–31).

• If he did not have the hernia, he “would have been a driver” (T29 L26–29).

• Since the last surgery in 2006 he has not looked for any jobs (T33 L12– 13).

• He accepted that he walks to various shops and newsagencies, which he anticipates to be about one kilometre, where he also shops, but never carries more than about two kilos (T34 L7–15).

• He can walk on the flat normally, but slowly (T34 L23–28).

• He lives by himself (but had his brother as a guest for some while) and performs light things around the house with assistance from others.

• He only receives treatment from Dr Brkic, who he attends once or twice a month (see T36).

• His knees cause him problems with walking up and down stairs and squatting (T37 L7–15).

• He has also developed pain in his right knee which commenced when he was about a year or so off work (see T40 L13–23).

• He has a significant hearing loss in his left ear, and his right-ear hearing is diminishing (T41 L29–31).

• He asserts that he could not work as a taxi driver as a result of his hernia condition because “it hurts a lot when I’m sitting. It’s a very strong pain.” (T43 L13–15.)

• In regards to other types of work, he gave the following evidence:

“[Question:] Why couldn’t you do that light work as a machine
operator? [Answer:] It’s a lot of bending.

[Question:] If you were being a machine operator where you didn’t have to bend but worked at bench height? [Answer:] You have to bend.

[Question:] If you are a machine operator where you are working at a bench, at bench height not having to bend, why couldn’t you do that, this morning? [Answer:] I wouldn’t stand for a long time because it’s a very big problem with my hernia because I can’t stand for a long time.”

(T46 L26–T47 L3.)

• He has never been interested in fishing but has been interested in table tennis, which he ceased when he stopped work at Arnott’s (T50 L30–T51 L3).

• He has difficulty cleaning his flat, particularly sweeping the floors, and cannot use a vacuum cleaner (see generally T54–55).

• He is capable of bending over to his letterbox, and, when questioned about lifting, he stated:

“[Answer:] For example, if I had to lift this chair, it would hurt me

somewhat but if I had to lift it three times, it would hurt me terribly.”

(See T60 L21–27 and T61 L19–23.)

29        In re-examination, the plaintiff gave the following pertinent evidence:

• His hernia prevents him performing many domestic duties (T63 L30–T64 L1).

• Riding on a bus which jumps a bit causes him to feel pain in his hernia area (T64 L6–9).

30        Dr Vladimir Bosanac, who seemingly has experience in psychiatry, examined the plaintiff on 13 March 2008 (refer p.69 of Exhibit 1). In a report of the same date, he describes the plaintiff’s presentation on that day as “indicative of and consistent with major depressive disorder ... developed over the years”. Dr Bosanac suggested to Dr Brkic that there be a referral to a consultant psychiatrist willing to take his “work-cover case”.

Medico-Legal Reports

31        The solicitors for the plaintiff arranged for the plaintiff to be medico-legally examined by:

(a)	The general surgeon Associate Professor Hadj on 3 December 2008 (see report dated 3 December 2008 at p.83 of Exhibit 1);
(b)	Dr Robyn Horsley, an occupational physician, on 18 February 2009 (see report dated 18 February 2009 at p.86 of Exhibit 1);
(c)	Mr Anthony Buzzard, a general surgeon, on 4 March 2009 (see report dated 7 March 2009 at p.93 of Exhibit 1);
(d)	Dr Nigel Strauss, consultant and occupational psychiatrist, on 19 March 2009 (see report dated 19 March 2009 at p.100 of Exhibit 1);
(e)	Mr Kenneth Brearley, surgeon, on 5 November 2009 (see report dated 5 November 2009 at p.108A of Exhibit 1);

32        Associate Professor Hadj is of the opinion that the “original work” is responsible for the plaintiff’s current symptomatology in relation to his hernia. In particular, Associate Professor Hadj describes the physical injury as one of chronic pain following hernia repair, the precise cause of which is uncertain, but “nerve entrapment may well be the case in this instance”. He considers the condition to be essentially stabilised, and, in relation to capacity for work, states:

“He is unable to perform work that is going to require lifting or repetitive bending. I am of the view that he would be capable of performing sedentary work where he does not have to lift objects heavier than 2–5 kgs. I believe that he would be capable of performing this work for up to 4 hours a day for 3 days a week.” (See p.84 of Exhibit 1.)

33        Dr Horsley diagnosed the plaintiff to be suffering from “ongoing disability related to symptoms in the abdominal wall” and a left-lateral meniscal tear in his knee. Dr Horsley is of the opinion that the nature of his physical work with the defendant is “compatible” with a recurrent epigastric hernia. She applied various work restrictions to the plaintiff, and in particular states:

“Mr Jovanovic has a capacity for work, however he is significantly disadvantaged. He has very poor verbal English skills and no literacy skills in English. He clearly suffers from a hearing deficit and he has now been out of the work force for a period of 7 years. He awaits an arthroscopy of the left knee through the public hospital system for debridement of his left lateral meniscus.

With respect to his abdominal symptoms alone, within the restrictions as outlined above, I believe that he does have capacity for work, however, his opportunities for redeployment are very limited.” (See p.92 of Exhibit 1.)

34        Mr Buzzard accepts that the pain complained of by the plaintiff is emanating from the abdominal wall and hernia repairs, although there is no evidence of a recurrent hernia. In relation to employment capacity, Mr Buzzard states:

“I think it is reasonable to accept that because he has a complication hernia repair that he should avoid work involving heavy lifting, bending and stooping. It would appear that the type of work that he was doing at Arnott’s biscuits ‘servicing the other people’ and lifting weights of 7–10 kg would be suitable for him.” (See p.96 of Exhibit 1.)

Later, Mr Buzzard states:

“Excluding completely any psychological or psychiatric situation – he does have a residual work capacity with a lifting limit of, say, 15 kg. This could be on a full time basis albeit that it would be reasonable for him to return to work initially part time and gradually working up to full time.” (See p.97 of Exhibit 1.)

35        Dr Nigel Strauss is of the opinion that “because of his physical problems [the plaintiff] has developed a chronic adjustment disorder with mixed anxiety and depressed mood”. The abdominal problems are “three quarters responsible”, and the knee problem is “one quarter responsible”. In relation to a capacity for employment, Dr Strauss states:

“His psychiatric problems have affected his motivation, his will to live and certainly his mood. He is upset and emotional and sees himself as a semi-invalid. On psychiatric grounds alone I doubt whether this man could work. He has to be considered to be totally and permanently incapacitated.

I doubt that this man will ever be able to return to suitable employment. Putting aside his physical and psychological problems he is a man who has not worked for a number of years, his command of English is poor, and he has very limited work experience. For all these reasons there is little chance that he could be retrained or participate in a return to work program.” (See pp.107–108 of Exhibit 1.)

36        In his report, Mr Brearley states, in part:

“Today examination shows no evidence of recurrence of the hernia and the findings are as would be expected following multiple hernia repairs in the epigastric region. The reason for his ongoing pain is not clear. It may be that there has been nerve entrapment but there is no clear evidence of that.

He developed significant depression in 2007 and he was put onto antidepressant medication. His psychological problems have persisted. He apparently has difficulty in concentrating and he frequently makes basic mistakes as in driving through red lights and not remembering where he had put an object almost immediately before. Such symptoms had not been present in the past.

...
The injury has stabilised.
...

His injury, namely the epigastric hernia and the attendant operations, has reduced his ability to perform his preinjury employment. This was of a relatively heavy nature involving bending, stooping and lifting and long standing. It would be preferable for him to avoid this type of work in the future lest he suffer a further recurrence of his epigastric hernia.

He is not fit for his pre-injury employment. It is doubtful whether he is able to return to work in suitable employment having regard to his ongoing disability, his age of forty-eight years, his poor education level and his limited English skills and his lack of work experience other than manual labour.”

(My emphasis.)

Later, Mr Brearley states:

“I do not think any rehabilitation or retraining would be particularly helpful given his education and his lack of English skills ...” (See pp.108E–108F of Exhibit 1.)

37        The solicitors for the defendant, or the agent of the defendant, arranged for the plaintiff to be medico-legally examined by the following doctors:

(a)	Mr Peter Grossberg, a general surgeon, on 15 May 2002 (see report dated 17 May 2002 at p.13 of Exhibit A), and on 17 March 2004 (see report dated 18 March 2004 at p.16 of Exhibit A).
(b)	Dr Alan Jager, a consultant psychiatrist, on 11 March 2004 (see report dated 16 March 2004 at p.21 of Exhibit A).
(c)	Mr Peter Nelson, a general surgeon, on 12 August 2004 (see report dated 16 August 2004 at p.26 of Exhibit A), 11 October 2004 (see report dated 14 October 2004 at p.29 of Exhibit A) and on 10 February 2005 (see report dated 14 February 2005 at p.32 of Exhibit A).
(d)	Mr Michael Troy, a general surgeon, on 20 September 2005 (see report dated 22 September 2005 at p.36 of Exhibit A), and on 17 February 2009 (see report dated 21 February 2009 at p.44 of Exhibit A).

38        Bearing in mind that the plaintiff has undergone four surgical procedures in relation to his hernia condition (which I have been informed by counsel for the defendant is an accepted compensable injury), and that the assessment of serious injury has to be made at today’s date, those reports which pre-date his last bout of surgery are of not much assistance (perhaps save and except the report of the psychiatrist, Dr Jager).

39        Dr Jager is of the opinion that when seen by him, the plaintiff had not sustained “a psychiatric injury”, but felt upset about the machinations of the WorkCover system in relation to treatment for his knee and hernia conditions; furthermore, from a “psychiatric perspective” the plaintiff has a capacity to undertake his pre-injury or any other employment for which he is suitably qualified (see generally p.24 of Exhibit A).

40        The plaintiff had undergone three bouts of surgery (not the final one by Mr Cass) when first examined by Mr Troy on 20 September 2005. At that time, Mr Troy diagnosed the plaintiff to have had epigastric and umbilical or paraumbilical herniae to the anterior abdominal wall. That examination was primarily to do with an assessment of whole person impairment under the relevant guidelines.

When examined on 17 February 2009 Mr Troy notes, of course, that the plaintiff had undergone the excision of the neuroma on 30 May 2006. Mr Troy did not examine the knees of the plaintiff. In regards to his abdomen, he states:

“As regards his abdomen, he is capable of working. He could carry loads of 5 kg, do security work sitting in a guard house checking vehicles, he could sit and stand on a process line lifting loads of 5 kg, and ensure that he is not engaged in rapid, repetitive movements, or forward flexion, or twisting and bending.

Has this condition stabilised?

Yes.

Prognosis

That depends on whether he has any further treatment. That one particular local area of tenderness from his last surgical procedure in May 2006, can be readily re-injected. That could be done under ultrasound control, plus also a small local anaesthetic and excision of that one particular point – and this would be all the treatment he needs. If that happens, he would have relief from all the previous symptoms he has experienced which have been work related.”

(My emphasis.)

41        Exhibit C (tendered by the defendant) is a medical report from the orthopaedic surgeon Mr Kevin King, who seemingly examined the plaintiff in or about July 2005 at the request of the plaintiff’s solicitors in relation to the left knee. Mr King noted the absence of specific clinical signs in the left knee and the absence of any past history of injury, and was unable to make a definite diagnosis to explain the left-knee symptoms. In particular, Mr King states:

“On the basis of the evidence available to me today I cannot say that he has a significant clinical problem in the left knee joint and, in particular, a significant clinical problem that is directly related to the work that he was doing over a period of six years in the biscuit factory ...”

42        The defendant also relies on a vocational assessment report from Recovre dated 17 May 2005 (see p.54 of Exhibit A) which pre-dates the last two bouts of surgery. The writer of that report puts forward suitable employment options to include process work, hand packer, and packager/container filler. I do note that the writer comments that “Mr Jovanovic’s work experiences provide minimal skills transferable to roles outside the manufacturing environment”.

Analysis of the Evidence

43        Consistent with the opening by counsel for the plaintiff, the emphasis by the plaintiff during the proceeding was on establishing that he had suffered a “serious injury” within the meaning of paragraph (a) rather than paragraph (c) of the definition of “serious injury”. Closing submissions were also consistent with such an approach.

44        I am satisfied that the plaintiff suffered a hernia injury arising out of or in the course of his employment with the defendant over the period from 20 October 1999 to December 2001, and that such injury has given rise to the need for four bouts of surgery over the years. So much is not disputed by the defendant.

45        As indicated to the parties during final addresses, I found the plaintiff to be essentially a witness of truth, and he was prepared on occasion to make appropriate concessions, some of which were against his interests. However, the demeanour of the plaintiff was curious, in that he appeared relatively “easygoing”, smiling and even on occasion quite jovial in his answers in cross- examination. As submitted by counsel for the defendant, it was not the presentation of a man in the grips of depression or indeed a man experiencing significant abdominal pain at that time.

46        Dr Brkic, who has been the general practitioner of the plaintiff since 3 November 2003, gave evidence. I found him to be an impressive witness, who had the advantage of being able to speak to the plaintiff in his native language. Dr Brkic was of the clear opinion that the plaintiff was “significantly affected” by pain and discomfort over and about the scar area, resulting from his previous surgeries. In particular, he was of the opinion that all forms of lifting, together with bending and twisting of his abdominal muscles, caused pain and discomfort. To this end, he was unfit for his pre-injury duties with the defendant (if it was still in existence) and was unfit for other manual work.

47        Associate Professor Hadj, Dr Robyn Horsley, Mr Anthony Buzzard, Mr Kenneth Brearley, and Mr Michael Troy, all highlight the difficulties that the plaintiff would have in performing work involving lifting, bending or twisting.

48        With the possible exception of Mr Troy (who thought the pain could be relieved by further treatment), all doctors thought such a situation was “stabilised”. In this respect, I also note that the complaints of the plaintiff have been consistently localised in and around his abdomen scars, rather than more spread complaints of pain.

49        Accordingly, I find that as a result of his abdomen injury the plaintiff has suffered a permanent impairment within the meaning of s.134AB of the Act, and furthermore has suffered and continues to suffer organic consequences, in that he suffers pain which is made worse by bending, lifting and twisting.

50        The evidence also established that the plaintiff had a reasonably significant hearing loss pre-dating his employment with the defendant, and also a left- knee injury (and to a lesser extent a right-knee injury) which seemingly developed after the occurrence of the hernia, and for which the plaintiff has required treatment both from Dr Brkic and specialists over the period of time that he has been off work. Dr Brkic was cross-examined about the knee condition, and, although conceding that such knee condition would affect his capacity for employment, he was hopeful that with arthroscopic surgery there would be an improvement.

51        Some of the cross-examination by the defendant was directed to whether aspects of his “pain and suffering” and any “incapacity for employment” were resulting from the knee condition rather than the hernia condition. During addresses, there was discussion in relation to the decisions of Dressing v Porter and Anor [2006] VSCA 215, a decision of the Court of Appeal handed down on 17 October 2006, and Acir v Frosster Pty Ltd [2009] VSC 454, a decision of Forrest J handed down on 7 October 2009. As I would understand the position of the parties, the propositions gleaned from those authorities are accepted to be:

(a)	If, by reason of “pain and suffering” consequences, the compensable injury met the serious injury test, it was “beside the point” that some other condition might also have satisfied the test by reason of its pain and suffering consequences. (See paragraph 47 of Dressing (op cit).)
(b)	When assessing the “without injury earnings” of the plaintiff within the three years after the compensable injury, it is not appropriate to take into account any supervening event which would impact on the “earning capacity” of the plaintiff. (See paragraph 170 of Acir (op cit).)

In such circumstances, senior counsel for the plaintiff submitted that whereas the knee condition of the plaintiff could not be taken into account in assessing the without-injury earnings of the plaintiff, in a similar way it should not be brought into account in assessing whether the plaintiff is fit for “suitable employment” within the meaning of the Act. However, he did emphasise that any pre-existing condition, such as the hearing loss, would be relevant in an assessment of what “suitable employment” would be available to the plaintiff.

52        Although Dressing (op cit) was dealing with s.93 of the Transport Accident Act 1986 and was only addressing “pain and suffering” consequences, I am of the view that such a principle is applicable to s.134AB and is also applicable when one assesses the “loss of earning capacity” of a plaintiff. That is, at the serious injury stage, the issue to be determined is whether the compensable injury results in or materially contributes to incapacity of the plaintiff, and it is beside the point that another injury may result in or materially contribute to incapacity for work. Such issues of course have potential relevance in any ultimate common law claim for damages.

In a similar way, although Acir (op cit) was directly concerned with whether a supervening event within the three years contemplated by s.134AB(38)(f) of the Act should be taken into account in determining the “without injury earnings” of a plaintiff, the principle, in my view, would also apply in assessing what “suitable employment” a plaintiff may be fit for.

53        In particular I accept the evidence of the treating general practitioner Dr Brkic that although there has been no recurrence of the hernia the plaintiff suffers significant localised pain in his abdomen when performing any lifting bending or twisting. Although all the doctors are not clear as to the precise source of the pain they seemingly accept that such symptoms have an organic cause related to the various hernia and repairs. The consistent localisation of pain, in my view supports such a proposition.

54        In such circumstances, I find that the plaintiff has suffered “consequences” in relation to “pain and suffering” which, when judged by comparison with other cases in the range of possible impairments, can be fairly described as being more than significant or marked, and as being at least very considerable.

55        With the exception of Mr Buzzard, all doctors are of the opinion that the work capacity of the plaintiff is such that he could not return to his pre-injury work (if it was available). Mr Buzzard does put limitations on the type of work that the plaintiff can perform, and indeed his assertion that he could return to pre-injury work may more reflect a lack of a full understanding of what such work involved. The more recent doctors vary in their opinions as to the plaintiff’s capacity for “suitable employment”, but the common theme throughout such reports is that any work should avoid any particular lifting, bending or twisting.

56        Section 134AB(38)(e)(i) of the Act requires the plaintiff to establish that, at the date of the hearing of the application, he “has a loss of earning capacity of 40 per centum or more, measured ... “as set out in paragraph (f)”. The measurement of the claimed loss of earning capacity, as prescribed by paragraph (f), necessitates a comparison of two matters:

(a)	the income the plaintiff is earning or is capable of earning in suitable employment at the date of the hearing (“after injury earnings”); and
(b)	the income that the plaintiff was earning or was capable of earning “during that part of the period within 3 years before and 3 years after the injury as most fairly reflects the worker’s earning capacity had the injury not occurred” (“without injury earnings”).

57        In both cases the income is limited to gross income from personal exertion and is to be annualised.

58        Sub-section (e)(ii) of s.134AB(38) of the Act requires the plaintiff to establish that he will, after the date of the hearing, continue permanently to have a loss of earning capacity which will be productive of a financial loss of 40 per cent or more.

59        Consistent with the approach of both parties, I find that the plaintiff’s “without injury earnings” is $42,755, and 60 per cent of that figure is $25,653.

60        The defendant submits that, although conceding the plaintiff would be unfit to go back to the type of work he performed with the defendant, he would be fit for “suitable employment” consistent with the opinions of Mr Cass, Mr Buzzard and Mr Troy. In particular, the defendant relies on various correspondence from Mr Cass to Dr Brkic to the effect that the plaintiff had a clear work capacity in 2006, and also to emphasise that since that date there has been no recurrence of the hernia.

61        I accept that the plaintiff does suffer significant ongoing symptoms in his abdominal area, and this is likely to be permanent. The plaintiff has only ever been trained as a driver (which he is unable to perform on a long-term basis), and has only ever performed manual work. It is difficult to contemplate any manual work which does not involve some degree of lifting, bending and/or twisting, and I am of the view that if the plaintiff does have a capacity for suitable employment it is quite limited and, as suggested by Associate Professor Hadj, would be no more than about 12 hours per week.

62        Accordingly I am satisfied that the plaintiff has discharged his onus in satisfying the requirements of S134 AB (38)(3)(i) and (ii) of the Act.

63        The defendant also raises the issue of whether the plaintiff has discharged the requirements of s.134AB(38)(g). In this respect, it is conceded by counsel for the plaintiff that since his last bout of surgery in 2006 the plaintiff has not been engaged in “any serious effort at rehabilitation or job search”. Indeed, such a concession is consistent with the evidence. However, several doctors have commented that the plaintiff is not a candidate for retraining or rehabilitation, given his language difficulties, hearing loss and educational background. No one has suggested any particular retraining that the plaintiff could undergo, or indeed any particular employment that he could readily engage in. On balance, I am of the opinion that paragraph (g) does not impact on the plaintiff.

64        Accordingly, I am satisfied that the plaintiff has discharged his onus in so far as the requirements of s.134AB(38)(e)(i) and (ii) of the Act.

65        In relation to paragraph (c) of the definition of “serious injury”, I find that there is insufficient evidence for me to be satisfied of a permanent mental or permanent severe behavioural disturbance or disorder which is “severe” within the meaning of the Act. The only evidence which pointed that way was the opinion of Dr Strauss, which must be balanced against the evidence of Dr Brkic and indeed Dr Jager. Furthermore, as noted, the presentation and demeanour of the plaintiff was certainly inconsistent with someone suffering from any severe mental or severe behavioural disturbance or disorder – to the contrary, he presented in a relaxed manner.

Conclusions

66        Accordingly, I dismiss the claim under paragraph (c) of the definition of “serious injury”. I find that the plaintiff has discharged his onus in establishing a “serious injury” within paragraph (a) of the definition of “serious injury”.

67 Accordingly, pursuant to s.134AB(16)(b) of the Act, I grant leave to the plaintiff to bring proceedings for the recovery of damages in respect of “pain and suffering” and “pecuniary loss” in respect of his abdomen condition suffered during the course of his employment between 20 October 1999 to December 2001.

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