Khalilullah Razban v Millie Mitrevska

[2017] NSWDC 248

District Court

New South Wales

Medium Neutral Citation:

Khalilullah Razban v Millie Mitrevska [2017] NSWDC 248

Hearing dates:

24, 25, 26 July 2017, 11, 25 August 2017

Date of orders:

28 August 2017

Decision date:

28 August 2017

Jurisdiction:

Civil

Before:

Russell DCJ

Decision:

(1)   Judgment for the plaintiff for $81,068.93.
(2)   Order the defendant to pay the plaintiff’s costs.

Catchwords:

DAMAGES – lump sum for future economic loss – Medicare payback

Legislation Cited:

Motor Accidents Compensation Act 1999

Cases Cited:

Penrith City Council v Parks [2004] NSWCA 201
Allianz Australia Insurance Limited v Kerr [2012] NSWCA 13

Category:

Principal judgment

Parties:

Khalilullah Razban (plaintiff)
Millie Mitrevska (defendant)

Representation:

Self-represented (plaintiff)

 

Counsel:
B. Kelleher appeared for the defendant

  Solicitors:
Hall & Wilcox for the defendant

File Number(s):

2015/307184

Judgment

Introduction

1. The plaintiff seeks damages for injuries arising out of a motor vehicle accident, by a Statement of Claim filed on 20 October 2015. The defendant admitted breach of duty of care and the matter proceeded as an assessment only. The award of damages is governed by the Motor Accidents Compensation Act 1999 (the Act).

2. The plaintiff appeared for himself throughout the trial. The hearing took place on 24, 25 and 26 August 2017. Near the conclusion of the oral submissions by the plaintiff, he disclosed that there was a debt outstanding to Medicare of $8,657. I pointed out to the plaintiff that he had called no evidence about that, and that, if I gave judgment without evidence about the Medicare payback, he could lose that amount from his damages. I therefore gave the plaintiff the opportunity to approach Medicare and obtain his records. He did this. The defendant then needed the opportunity to consider the amounts paid by Medicare, to ascertain whether or not it was accepted that each amount related to the motor vehicle accident. For this purpose the matter was listed again for further short hearing on 11 August and 25 August 2017.

3. The motor vehicle accident upon which the plaintiff sued occurred on 10 November 2013. The plaintiff alleged injuries to the upper half of his body. The assessment of damages was complicated by two earlier injuries. In about 2002 the plaintiff fell at school and fractured his left radius and ulna. Plates and screws were inserted and left in place. On 26 June 2011 the plaintiff, while working as a security guard, slipped down some stairs at work and suffered injuries to his knees. These injuries caused him ongoing pains and problems and interfered with his ability to work. It also led to him developing psychological problems.

Evidence and Findings of Fact

4. The plaintiff was the only witness who gave oral evidence. Both parties tendered medical and financial material.

5. I make the following findings of fact.

6. The plaintiff was born on 5 April 1990 and was 27 years old at the date of trial. He was born in Afghanistan and came to Australia in 1998 or 1999. He learnt English in Australia and finished Year 12 in 2008, obtaining the Higher School Certificate.

7. After leaving school the plaintiff did some labouring work in the construction industry, and then went into retail sales work. He obtained a security licence and performed occasional weekend work as a security guard and bouncer. His 2011 tax return showed an income of $264.29 nett per week.

8. On 26 June 2011 he was working at a nightclub in Kings Cross when he tripped on a flight of stairs. He twisted his right ankle, slipped and landed on both knees. He went to St Vincent’s Hospital where x-rays were taken. His left knee was swollen up by that time.

9. The plaintiff had 20-25 sessions of massage therapy and in about September 2011 he resumed work in retail sales. He was on light duties able to do 10-12 hours per week. However, his employer required him to do lifting, bending, climbing stairs and climbing ladders. He wasn’t able to do this work. His hours were cut and he thought that he was going to be terminated, so instead he resigned at about the end of 2011.

10. On 10 February 2012 the plaintiff saw Dr Assem a rehabilitation specialist. Dr Assem reported that the plaintiff in his fall at work had suffered an undisplaced transverse fracture to the right patella. There was an MRI of the left knee. The plaintiff complained of residual pain. Dr Assem found that the plaintiff was totally unfit for work as a bouncer but would be fit for work as a retail assistant if not required to stand or walk for long periods.

11. In about March 2012 the plaintiff began working at Riley’s Gym at Seven Hills. He did reception work there. He had to go onto the gym floor and lift and re-arrange the heavy weights which had been left lying around by customers. He had problems using his knees to lift the weights.

12. The plaintiff only worked for a couple of weeks at Riley’s Gym, starting in March 2012. He found that he could not do that work and after a while he was not paid properly. After leaving that gym he did not attempt to get any other work. At that stage he wanted to get back into training and body building and he spent a lot of time doing that. He did not want to be an indoor administrative-type worker.

13. The plaintiff participated in the hobby of body building and felt happiest when he was at the gym, training and being with people who had the same interest. He had returned to the gym in September 2011 but was not able to train his legs as it was too much strain on his injured knee. However, he did a lot of gym work on his upper body and by about March 2012, his musculature had developed in his upper body to the same level as he had prior to the nightclub accident. At this stage he had ambitions to become a personal trainer.

14. In 2012 and up to November 2013, prior to the motor vehicle accident, the plaintiff had restrictions with his left knee. He was restricted in walking long distances, he became tender in the knee and it would swell. He could go up and down stairs but he avoided doing so. He could not train as a body builder, at least so far as his legs were concerned.

15. On 28 June 2013 the plaintiff was on the Gold Coast for a social event and suffered from a painful left knee. He went to the Robina Hospital and gave a history of chronic left knee pain. The plaintiff had run out of pain killers and presented to the Emergency Department requiring medication for his left knee pain.

16. On 24 September 2013 the plaintiff attended his GP Dr Parry and asked for a certificate in relation to his membership of a gym. The doctor certified that the plaintiff had been suffering from a work injury since May 2013, was on restricted duties and had been:

“unfit to train at the gym since May. This restriction is ongoing and will last at least until December. I would support his application to freeze his gym membership”.

17. An attack was made on the plaintiff’s credit based on this certificate. The plaintiff gave evidence that while he had been unable to train at the gym with his lower legs, because of his knee injury, he had continued training his upper body at the gym and keeping it built up. It was put to the plaintiff that he was not telling the truth about this, as he had asked for a certificate saying he was unfit to train at the gym.

18. The plaintiff gave evidence that at the time he belonged to three gyms, as he used to train at different places so as to meet friends who belonged to those various gyms. Because he had no income after being unable to work he wanted to suspend one gym membership to save money. I formed the view that he was telling the truth about that and I do not think that any inroads were made into his credibility arising out of this certificate.

19. On 25 September 2013 the plaintiff attended his general practitioner who recorded that he complained of left forearm pain. He was sent for an x-ray of the left foream. The x-ray was done the same day and showed old fractures of the left radius and ulna, although the fracture lines were no longer visible. The alignment of the bones was satisfactory.

20. The plaintiff went back to his GP on 26 September 2013 when the x-ray was discussed and he was advised to leave the plates in his arm well alone.

21. The plaintiff gave an explanation for this visit to the doctor which I do not accept. He said that he was having a conversation with the locum doctor at the practice who turned out to be a former orthopaedic surgeon. He discussed the plates and screws in his arm and said that out of interest he wanted an x-ray of them. This seems highly unlikely. I have no reason to doubt the note made by the GP on 25 September 2013 that the plaintiff complained of left forearm pain.

22. However, there is no other entry in the notes of any general practitioner about a complaint of left forearm pain before the car accident. In those circumstances, I find that the visit of 25 September 2013 related to a transient problem in the left forearm and that there was no ongoing disability in that area prior to the car accident.

23. CGU was the workers compensation insurer in relation to the knee injury. On 30 September 2013 the plaintiff filled out an application for further review in his own handwriting. He said:

“I have ongoing pain on a daily basis, I can’t squat, I have a lump problem left of my left knee, I have trouble standing no more than 3-4 hours due to the pain arising, I am still taking pain killers and anti-inflammatory pills… I need treatments and rehab to get to my normal life before my injury. I am sick of being in pain depressed at home.”

24. On 27 October 2013 the plaintiff went back to his GP and reported that he was depressed. He said that he had an injury to his left knee two years ago and “since then his life turned upside down”.

25. The GP Dr Parry wrote a referral letter dated 29 October 2013 to Professor Al Muderis, an orthopaedic surgeon. Dr Parry told the specialist that the plaintiff had a long history of left knee pain following a work-related injury in June 2011. He asked Professor Al Muderis for a specialist review.

26. The GP Dr Ibrahim advised the plaintiff to move on from body building and get on with the rest of his life. She sent him to a counsellor for this purpose. This was Ms Sathe. The plaintiff had two sessions with her prior to the car accident. In a report dated 31 October 2013 to the GP, Ms Sathe advised that the plaintiff would be given six sessions of cognitive behaviour therapy to help explore and understand his depression and anxiety.

27. The plaintiff said that his pains and problems with the knee continued right up to the time the car accident happened. He was taking over-the-counter medications such as Nurofen and Panadol as well as an anti-inflammatory drug called Meloxicam.

28. The car accident occurred on 10 November 2013.

29. The accident occurred on Beamish Street at Campsie at about 8.45pm. The plaintiff had parked his vehicle facing south on Beamish Street and was about to open his driver’s side door to step out of his car. The front of the defendant’s vehicle suddenly collided with the rear of the plaintiff’s vehicle. The plaintiff contacted a cousin who came to the scene soon afterwards and drove him to Blacktown Hospital for treatment.

30. The notes of Blacktown Hospital show that the plaintiff attended late on 10 November 2013. Triage recorded that the plaintiff presented with neck, head, and right arm pain which occurred after the plaintiff was in a parked car hit by another car travelling at approximately 50-60 kmh. It was recorded that the plaintiff said he hit his head on the steering wheel. He complained of pain on moving his head and had cervical spine tenderness and a headache.

31. The plaintiff complained at hospital of right arm pain and there was an x-ray done of his right elbow.

32. The plaintiff developed a problem in his left forearm which was quite unusual. He had an x-ray done of the left forearm on 18 November 2013 which noted the old fracture but recorded that there was soft tissue swelling in the dorsal aspect of the forearm, adjacent to the ulna. The radiologist thought that this swelling which was 12.5cm in length and 2.3cm in depth most likely was a haematoma.

33. On 19 November 2013 an ultrasound of the left forearm was carried out. This recorded a lobulated lesion with appearance similar to muscular fibres in the medial aspect of the left forearm. It measured 10cm by 5cm. It was closely associated with the flexor digitorum superficialis muscle in the medial aspect of the foream. The radiologist thought that the ultrasound showed features suspicious of a large muscular hernia.

34. The GP Dr Ibrahim wrote a referral letter dated 21 November 2013 to Dr Chris Scott. Dr Ibrahim said that the plaintiff had a motor vehicle accident recently hitting his left forearm where he previously had a plate and screws inserted over 12 years ago. Dr Ibrahim said that the plaintiff had been very weak in this arm and had noticed a lump which was found to be herniated.

35. The plaintiff reported the accident to Blacktown Police Station on 29 November 2013 when he advised that he was receiving ongoing treatment for whiplash and an injured left forearm.

36. On 3 December 2013 the plaintiff consulted Dr Scott who is a specialist hand and arm surgeon. Dr Scott took a history that the plaintiff had struck his left forearm on the steering wheel and that ever since he had complained of weakness in the left arm and pain along the ulna. He also reported an increase in size of a muscle hernia under the scar in this area (the scar being from the old operation for the childhood fractures). On examination Dr Scott found a very large muscle hernia over the scar over the ulna. There was deep tenderness over the ulna in that area. There was tenderness along the course of the ulnar nerve. Dr Scott said that he would attempt to repair the muscle hernia and at the same time remove the plate in the arm.

37. The plaintiff also started to complain to his GP of pains in the left shoulder joint. The GP sent the plaintiff for an ultrasound of the left shoulder which was carried out 10 December 2013. This showed no evidence of a rotator cuff tear but did show sub-acromial and sub-deltoid bursitis.

38. Dr Scott operated on the plaintiff for the first time on 30 January 2014 at the Sydney South West Private Hospital. He re-opened the old scar and observed the exposed ulna. No plate could be seen which indicated that the ulnar plate was entirely within the bone, being covered by at least 1-2mm of mature cortical bone. Dr Scott thought that the plate was not the cause of the plaintiff’s symptoms and that removal of the plate was not indicated. The muscle hernia was repaired. This resulted in new hernias becoming evident at all of the plaintiff’s scars. There were problems with contractures of fingers and Dr Scott thought it best to completely release the repair he had done, thus leaving the plaintiff in the same situation he was before the operation.

39. On 13 February 2014 Dr Scott reviewed the plaintiff in his rooms. He explained the need for reversal of the partly completed operation to the plaintiff. Dr Scott reported to the GP that he was now fairly confident that the pain that the plaintiff described was from a crush injury to the ulnar nerve. He thought that this might resolve over many months. There was no specific treatment offered at that time.

40. By a letter dated 6 March 2014 Dr Scott referred the plaintiff to Dr Gronow, a pain management specialist. He told Dr Gronow that he thought that the plaintiff had a blunt injury to the ulnar nerve and secondary cubital tunnel syndrome. His problems in the left arm had been exacerbated by heavy use including gym work. He noted that the plaintiff was having trouble psychologically coping with the pain and had difficulty accepting the effect of the injury on his body image.

41. On 1 May 2014 Dr Ho reported to Dr Scott concerning the review of the plaintiff at the Sydney Pain Management Centre. His diagnosis was that the plaintiff had a chronic neuropathic left forearm pain secondary to traumatic neuropraxia of the medial cutaneous nerve of the left forearm and the ulnar nerve caused by the motor vehicle accident. His pain experience was worsened by his depression and anxiety, exacerbated by his injury and pain chronicity and aggravated by his social stressors, unemployment, poor self-image and inability to return to gym activities, perpetuated by his lack of pain-coping strategies. He recommended 8 medical sessions, 12 physiotherapy sessions and 12 psychology sessions with the goals of pain reduction, improved function and gym work and pain self-management. He said that the prognosis would be better with early aggressive treatment. The insurer declined to pay for this treatment. There was no acceptable evidence to contradict the opinion of Dr Ho that the treatment was necessary and would have helped the plaintiff. I find that that was the case.

42. On 16 May 2014 Dr Scott reported back to the GP Dr Ibrahim stating that he was impressed with the thoroughness of the assessment at the Sydney Pain Management Centre and he recommended proceeding with the pain management course as prescribed. That opinion reinforces the finding I have made concerning the desirability of that treatment.

43. On 20 May 2014 Professor Al Muderis provided a medico-legal report based upon an examination made that day. This was in relation to the knee injury suffered at work. He said that the work injury had resulted in a fractured patella and chondral fissuring. The doctor said that the plaintiff had difficulty performing tasks such as kneeling and squatting due to the damage of the patella surface. He found the plaintiff unfit for work both as a bouncer and as a sales person in the clothing retail industry, because of the knee issues.

44. On 16 June 2014 the plaintiff was assessed by Dr John McMahon, a clinical psychologist, at the request of the defendant. He took a history that for two months prior to the motor vehicle accident the plaintiff was depressed and had been prescribed Pristiq. Dr McMahon thought that the plaintiff appeared to be overly symptomatic. He thought that the plaintiff had a pre-existing post-traumatic stress disorder and depression. He diagnosed a mild adjustment disorder attributable to the motor vehicle accident.

45. There was a medical consultation with Professor Al Muderis on 1 July 2014. Again this was about the knee. The doctor said that surgery was not an option and that the plaintiff needed targeted physiotherapy for his patello femoral syndrome.

46. The plaintiff saw Dr Drew Dixon, a consultant orthopaedic surgeon, on 10 July 2014 at the request of his then solicitors. This was in relation to the knee. The plaintiff complained of difficulty kneeling and squatting at home to do the garden and household cleaning such as the bathroom and the cleaning of his car. He reported residual swelling in the left knee and some ache in the right knee while favouring the left knee. There was no gross instability of the knee.

47. Dr Dixon did note the motor vehicle accident where he took a history that there was an injury to the left forearm and a whiplash injury to the neck. He thought that the prognosis for return to work either as a security guard or as a retail assistant was guarded, because of the knee injury. That report did not really consider the injuries and disabilities caused in the motor vehicle accident.

48. On 4 August 2014 the plaintiff was seen by Dr Robert Breit, an orthopaedic surgeon, at the request of the defendant in these proceedings. Dr Breit thought that the plaintiff complained of extraordinary disabilities and there was significant evidence of maximisation. He found global tenderness in the neck, no spasm, symmetrical movement loss as well as evidence of co-contraction of muscles, dropping of the shoulder and inconsistencies in the range of movement.

49. Dr Breit thought that the muscle hernia in the left forearm was the result of the previous operation, by which he meant the childhood operation for the fractured forearm. There is no indication in his report that he knew of or paid any regard to the opinion of Dr Scott, the treating surgeon.

24. Dr Breit was quite dismissive of the notion of pain management, saying:

“I should also point out that in quite a few years now of dealing with medico-legal problems, I cannot recall ever seeing anyone who has had any benefit from pain management.”

51. Dr Breit thought that the plaintiff may well have had some minor soft tissue injuries which had settled but the presentation now was of maximisation and inconsistency.

52. I reject the opinion of Dr Breit in relation to the left forearm. As I have said, he recites nothing of the operative findings of Dr Scott, and thus says nothing about the opinion of the surgeon who by that stage had seen inside the plaintiff’s forearm during an operation. However, other evidence in the case supports the finding of Dr Breit that the plaintiff was a person who maximised his disabilities and displayed physical signs far in excess of his actual problems. I will come to that evidence below when I deal with the findings of a Medical Review Panel.

53. On 31 October 2014 Dr Scott referred the plaintiff to Dr Damien Ryan at the Macquarie University hand clinic for a second opinion. Dr Ryan reported back to Dr Scott by a letter dated 10 November 2014. On examination he found an obvious muscle hernia adjacent to the scar over the left ulna. He thought there needed to be a nerve conduction study to ensure that there was not some element of ulnar nerve compression as a source of the problem. He found that the herniated muscle could not be attributed to the previous plate fixation. His final recommendation was for consideration of a repair of the muscle hernia using a mesh.

54. This report post-dates the report of Dr Breit, but it provides further support for my rejection of the opinion of Dr Breit that the muscle hernia was somehow caused by the childhood fractured arm operation, rather than by the motor vehicle accident.

55. On 15 November 2014 there was an MRI of the left shoulder which again showed mild bursitis.

56. On 24 November 2014 Dr Scott reported to Dr Ibrahim GP and relayed the opinion of Dr Ryan. He had recommended further surgery to the plaintiff and approval was going to be sought from the insurer. In the end result the insurer declined to pay for the surgery, but the plaintiff funded it himself.

57. On 12 October 2014 Dr Rail, a neurologist, reported that a nerve conduction study was normal. Dr Scott reported this on 22 January 2015.

58. On 29 January 2015 Dr Scott conducted his second operation which involved a mesh repair of the muscle hernia in the left forearm. This was carried out at Sydney South West Private Hospital. The borders of a large muscle hernia were identified and dissected out. A portion of mesh was trimmed to fit. The muscle hernia was reduced and the defect was repaired using the mesh. This was sutured in place.

59. On 12 February 2015 Dr Scott reviewed the plaintiff and reported to the GP that the wound had fully healed with no sign of infection. There was no evidence of a hernia.

60. On 22 September 2015 the plaintiff was again seen by Dr Drew Dixon, orthopaedic surgeon, for a medico-legal report, this time in relation to the motor vehicle accident. The plaintiff reported persisting pain and stiffness in the neck, frontal migraine-like headaches and pain in the left shoulder. He reported that neck pain disturbed his sleep. He had stiffness of the left shoulder with difficulty elevating the arm above shoulder height and difficulty with heavy lifting and carrying because of the shoulder. The plaintiff reported residual pain in the left forearm down the ulnar side with sensory changes in the ulnar three fingers. There was mild swelling of the herniated muscle area of the forearm where the repair surgery had been carried out. There was some pain at the point of the right elbow.

61. Dr Dixon set out his findings on examination and accepted that the plaintiff had injuries to his neck, left shoulder and left forearm as a result of the motor vehicle accident. He found the plaintiff to be consistent in presentation.

62. It is trite to note that the task of a trial judge is extremely difficult in a case like this where reports are presented from two orthopaedic surgeons (Dr Breit and Dr Dixon) who make directly opposed findings concerning their examinations and their prognosis.

63. Dr Dixon set out the cost of future treatment and said that the prognosis for return to the workforce was guarded. He noted that there was a disability in returning to work caused by the knee but said that the neck, shoulder and forearm injuries suffered in the motor vehicle accident would make it even more difficult for the plaintiff to return to work.

64. By October 2015 the plaintiff was seeing Dr John Pickering, a psychiatrist, on referral by the GP Dr Ibrahim. In a report dated 30 October 2015 Dr Pickering recorded the fact that the plaintiff had had two accidents – the knee in 2011 and the motor vehicle accident in 2013. He said that the plaintiff had found it difficult to accept the changes in his life which had been turned upside down as he could not work and could not pursue his principal interest in life which was body building. The plaintiff had a loss of fitness, but his inability to engage in body building led to a loss of self-esteem. He thought that the plaintiff was pre-occupied with the loss of amenities of life and with the treatment he had received by the insurers.

65. Dr Pickering diagnosed an Adjustment Disorder in that the plaintiff was having difficulty accepting the changes in his life, was frustrated by delays in the system and by the refusal of the insurer to pay for necessary treatment. Further, the plaintiff had a marked loss of self-esteem brought about by a loss of all things he valued – his body building, his fitness, his appearance and a sense of purpose in life as well as the ability to work.

66. Dr Pickering thought that the plaintiff did not have a neuropsychiatric disorder and therefore did not require anti-depressant medication. However, he thought that anti-depressants may be useful for treating the pain syndromes. He thought that the plaintiff needed treatment by a psychologist who could help with both pain and adjustment disorders.

67. Dr Scott provided a medico-legal report dated 12 November 2015. He set out the findings he had made on various examinations and referred to the two operations he had carried out. He noted that while there was an initial good result from the second operation, by six months the plaintiff started to develop increasing pain again in the same location along the ulnar border of the forearm. He suffered a further decline in his psychological outlook and mood. Dr Scott found that there was clinical evidence of ongoing neuropathic pain, related to the damaged ulnar nerve. He reluctantly recommended surgery to decompress the nerve at the elbow. Such surgery has not yet taken place.

68. Dr Scott was specifically asked to comment on the relationship between the motor vehicle accident and the injuries sustained. He set out in some detail his consideration of the old childhood fracture, and the findings he made on examination. Dr Scott attributed the problems in the left forearm, and the neuropathic pain now suffered, to the motor vehicle accident.

69. As to fitness for work, Dr Scott thought that the plaintiff had very limited lifting capacity with the left arm. In addition, he developed significant neuropathic pain in the arm with use. He was not fit to return to work in security or in any form of manual labour. Dr Scott thought that he would struggle even in retail if he was required to handle stock. Dr Scott thought that the plaintiff would be capable of performing suitable office administrative duties with appropriate re-training, but noted the ongoing psychological problems.

70. Dr Scott thought that the third surgery should take place and set out the cost of that treatment as follows:

1. Surgeon’s fee                                    $1,370

2. Assistance fee                                   $   200

3. Anaesthetist’s fee                              $2,310

4. Hospital                                             $1,903

5. Post-operative hand therapy             $1,550

                    TOTAL                                               $7,333

71. Dr Pickering did refer the plaintiff to another counsellor Dr Deborah Mitchison. She provided a report to Dr Pickering and to the GP Dr Ibrahim dated 21 December 2015 in which she agreed that the plaintiff was suffering from an adjustment disorder, specifically muscle dysmorphia. She proposed psychological therapy for this and referral to a pain management specialist.

72. The plaintiff saw Dr Neil Berry, a specialist general surgeon, on 16 December 2015 for a medico-legal consultation arranged by the plaintiff’s then solicitors. He found that the plaintiff had been left with a reduced range of movement in the shoulder and the wrist which was a consequence of both the motor vehicle accident and the subsequent surgery. He thought that the plaintiff was fit for work that did not require the heavy, forceful and repetitive use of the left arm, especially at or above shoulder height.

73. On 20 January 2016 the plaintiff went to the Emergency Department of Blacktown Hospital suffering from a panic attack. He presented with acute shortness of breath, hyperventilation and perioral and limb paraesthesiae. He was assessed and it was adjudged that his symptomatology was psychosomatic in nature. He was reviewed by the inpatient psychiatry team who had the impression that he was having a panic attack along with his adjustment disorder. He was discharged home and advised to see his regular psychiatrist.

74. On 22 February 2016 the plaintiff again saw Dr John McMahon, clinical psychologist, at the request of the defendant. Dr McMahon diagnosed a mild adjustment disorder resulting from the motor vehicle accident.

75. On 23 May 2016 the plaintiff was assessed by Dr Rees, psychiatrist, for the Motor Accidents Medical Assessment Service of the State Insurance Regulatory Authority (SIRA). He came to the view that the plaintiff suffered an adjustment disorder which started with his knee problems and then continued and worsened because of the upper body problems. He found that the plaintiff had a body dysmorphic disorder.

76. On 31 May 2016 the plaintiff was assessed by Dr Faithfull, an orthopaedic surgeon, for SIRA. I will not deal with his report in depth because a later review came to a different conclusion to Dr Faithfull. However, Dr Faithfull found a soft tissue injury of the cervical spine particularly affecting the trapezius muscle, a painful reduced range of movement in the left shoulder and a muscle hernia in the left forearm which was no longer a problem.

77. On 25 November 2016 a Medical Review Panel reconsidered the assessment conducted by Dr Faithfull. The Panel provided a Review Panel Certificate to SIRA.

78. That consideration of the plaintiff’s injuries and disabilities was by far the most detailed consideration by any of the doctors. Further, it was conducted by three specialists, all of whom were independent. It took into account all of the medical material, whereas, as recited above, various doctors from time to time have considered one injury but not the other, or have not taken into account medical material which should have been taken into account. I will therefore deal with the findings of the Review Panel in detail.

79. A Medical Review Panel consisting of Drs Lahz, Stubbs and Cameron conducted a review on 25 November 2016 of the prior assessment by Dr Faithfull certified on 6 June 2016. The Panel revoked the certificate of Dr Faithfull and issued a new certificate for the purposes of the Act. The Panel determined that the plaintiff’s whole person impairment was not greater than 10%, which has meant pursuant to s 131 of the Act that the plaintiff cannot recover any damages for non-economic loss. The panel had a large amount of material before it, but importantly, it had all of the notes and reports of Dr Scott who had conducted the operations upon the plaintiff. It also had extensive records from the general practitioners seen by the plaintiff both before and after the accident. The assessment of the plaintiff by the Panel took two hours. The Panel heard from the plaintiff and recorded his complaints and submissions in great detail.

80. The Panel decided to accept that injuries of the neck and left shoulder and left forearm were caused by the motor vehicle accident. The Panel also accepted that there was a surgical scar over the ulnar border of the forearm due to repair of a forearm hernia resulting from the motor vehicle accident. The Panel also accepted that there had been a minor nerve injury of the left forearm in the distribution of the medial antebrachial cutaneous nerve, which was due to the 2015 hernia repair. There were no objective findings on physical examination such as muscle wasting or weakness in the designated peripheral nerve distribution. The Panel found that the ulnar nerve was not damaged. There were no direct injuries of the left wrist or hand from the accident.

81. The panel considered that certain injuries had given rise to a permanent impairment. These were a soft tissue injury to the neck, a soft tissue injury to the left arm and forearm incorporating the left shoulder and the medial antebrachial cutaneous nerve, and a scar on the ulnar border of the left forearm. The Panel found that the electric shock sensations in the forearm were due to disruption of the superficial nerves in the forearm caused by the hernia repair surgery in 2015.

82. The Panel found that there were no objective physical signs of injury at the neck.

83. The left shoulder ultrasound of December 2013 had showed a trivial finding of bursitis, which the Panel said was “medical incompatible with the demonstrated range of left shoulder motion (severe restriction) at Panel re-examination”. While the Panel accepted that there had been a mild left shoulder injury due to the accident, the marked variability in active movement was not consistent with an anatomical shoulder injury.

84. The Panel accepted an injury of the left arm/forearm leading to repair of the muscle hernia. The Panel noted that the surgery was effective by improving left-sided grip, resolving localised muscle pain and eliminating the local muscle bulge. The surgical scar was the remaining impairment from that injury. The Panel found that the plaintiff was conscious of the scar and there was notable colour contrast in the area. The scar did not limit function, there was no adherence of the scar and no treatment was required.

85. The assessment by the Medical Review Panel was the most recent medical material put before the court. The report of the Panel was by far the most detailed report tendered by either side. The three members of the Panel had the advantage of considering all of the relevant historical medical material, particularly the reports of Dr Scott. The panel made its own independent examination of the plaintiff and spent some time doing so. The Panel listened to the complaints and submissions of the plaintiff.

86. The plaintiff himself expressed a lack of confidence in the independence of the Panel and the process he was forced to go through which resulted in the previous assessment of Dr Faithfull being overturned. I find nothing in the evidence before the court to suggest that the conclusions reached by the Panel were based on anything other than a detailed examination of the plaintiff, a consideration of all of the relevant historical medical material, and the independent opinions of three experienced specialists. In those circumstances I place great weight upon the findings and conclusions of the Panel.

87. I find that the plaintiff suffered the following injuries in the motor vehicle accident:

1. A soft tissue injury to the neck;

2. A soft tissue injury to the left shoulder;

3. An injury to the left forearm which resulted in a muscle hernia, leading to the need for three operations;

4. A minor nerve injury of the left forearm in the distribution of the medial antebrachial cutaneous nerve, which was due to the 2015 hernia repair operation.

5. An exacerbation of the plaintiff’s pre-existing adjustment disorder and body dysmorphia.

88. In those circumstances there will be an award of damages for the plaintiff. I turn to consider the various heads of damage.

Non-Economic Loss

89. As previously recited, there can be no award for non-economic loss, as the plaintiff has not exceeded the statutory threshold of 10% whole person impairment.

Out-of-Pocket Expenses

90. Out-of-pocket expenses fell into five categories:

1. The defendant paid $21,610.35 pursuant to s 83A of the Act. It was agreed that this would be included in the judgment but then the defendant would have a credit for that payment;

2. Out-of-pocket expenses paid directly by the plaintiff;

3. Travelling expenses;

4. Out-of-pocket expenses paid through Medicare, which the plaintiff asserted were for treatment due to the motor vehicle accident;

5. Additional matters raised on 25 August 2017.

91. Unfortunately agreement was not reached between the parties in relation to out-of-pocket expenses. However, the parties produced useful schedules of the out-of-pocket expenses, and the resolution of which expenses to include in the judgment is largely the result of my finding that the plaintiff suffered injuries to his neck, shoulder, and left forearm, as well as an exacerbation of his psychological problems.

92. I will deal first with the out-of-pocket expenses paid by the plaintiff himself. These were set out in Exhibit PX9. On Exhibit DX10 the defendant marked with a tick those expenses which it accepted were referable to the accident. It marked with a cross those which it disputed, either because it submitted they were not referable to the accident, or because the supporting documentation did not justify the amount.

93. My findings in relation to the disputed amounts on Exhibit DX10 are as follows:

1. Parking to see Dr Chris Scott - $20 – I allow this.

2. Vaughn Ryan Acupuncture - $75 – I allow $25.

3. Vaughn Ryan Acupuncture - $2,835 – I allow $2,795.

4. Vaughn Ryan Acupuncture - $192 – I allow this.

5. Gwen Davies Massage - $60 – I allow this.

6. Wang’s Massage - $776 – I allow $736.

7. Basten & Associates, psychologists - $150 x 2 – I allow this.

8. Dr John Pickering - $50 – I allow this.

9. Superchem Blacktown Pharmacy - $629.08 – I allow this.

10. Barone Pharmacy - $15.50 – I allow this.

11. Chemistworks – $42.20 – I allow this.

12. Rebel Sports - $44.98 – I allow this.

13. Civil Registry printing - $10 – I do not allow this as it is not a medical expense.

14. Officeworks – $246.77 – I do not allow this as it is not a medical expense.

94. The total of the amounts which were not in dispute, plus the disputed items which I have allowed, is $12,617.48

95. The plaintiff also claims travel reimbursement. He drove 9,292kms for treatment. This is a lot of travelling for his treatment, but more than once his treating practitioner moved, and he followed them. The plaintiff claims at 55 cents per kilometre which seems reasonable. Therefore for travel reimbursement I allow $5,110.60.

96. In relation to the amounts which the plaintiff identified on his Medicare History Statement as being referable to the accident (Exhibit PX8), the defendant produced a detailed schedule (DX11) which ran to 21 pages and in the right-hand column indicated the defendant’s response to each and every item claimed by the plaintiff. Some were accepted.

97. Some were rejected because they were said to relate to a prior injury to the left arm (being the childhood fracture). It was part of the defendant’s case that the problems with the left arm were pre-existing. I have found that the left arm problems were caused by the accident.

98. Some were rejected because a consultation with a GP covered not only the psychological symptoms caused by the motor vehicle accident, but the psychological symptoms arising from the knee injury. These cannot be disentangled. I have found that the plaintiff’s psychological condition was exacerbated by the motor vehicle accident. In those circumstances it seems to me that I should allow each consultation with a GP after the accident where the question of mental health was raised.

94. The defendant disputed some GP consultations about the shoulder, but I have found that the shoulder was related to the accident.

95. The defendant provided the Schedule in DX11 to the plaintiff and when he went through his Medicare claims history again, he acknowledged that three items which he had ticked were, on reflection, not related to the accident. These were three GP consultations on 20 December 2013, 14 July 2017 and 16 July 2017. These total $128.70. The plaintiff withdrew his claim for those items. He said that every other service on his ticked Medical History Statement related to the accident.

96. The defendant disputed that GP consultations for headaches were attributable to the accident, but with an injury to the neck, I accept that minor headaches were caused by the accident.

97. So far as the plaintiff’s psychological treatment was concerned, the defendant opposed any of the items on the basis that the plaintiff’s psychological condition pre-dated the accident. It did, but I have found that his psychological condition was exacerbated by the accident, and thus I allow the cost of such consultations as covered by Medicare.

98. Some of the expenses paid by Medicare were opposed by the defendant on the basis that it relied upon the report of Dr Breit. I have already indicated that I have rejected his opinion.

99. Some of the expenses paid by Medicare were for pathology, mainly blood tests. I cannot see that these were attributable to the accident, and I disallow them.

100. I allow the expenses related to Dr Scott, as I have accepted his opinion and found that the treatment he gave was related to the accident.

101. In relation to the GP Dr Ibrahim, the defendant opposed some expenses which were clearly charged to Medicare, but for which there was no consultation note. That is not the plaintiff’s fault and I allow those expenses.

102. There is an expense in relation to Dr Fung which relates to the eyes. This is not allowed as there is no medical evidence to support such an injury or the need for such treatment.

103. It would double the length of this judgment if I went through every item line by line in the 21 page defendant’s response to the expenses claimed through Medicare. The plaintiff did point out in his final oral submissions that some of the disputed amounts where there was a “gap” between what the doctor charged and what Medicare paid, had either been paid by the defendant or were conceded by the defendant as part of the out-of-pocket expenses for which the plaintiff sought reimbursement, having paid for them himself.

104. What I have done is go through Exhibit DX11 and tick those expenses which I allow as part of this claim, in the right-hand margin. I have placed a cross against those which I disallow. The total amount of Medicare expenses which I find to be attributable to the motor vehicle accident is $7,842.65. This will be included in the plaintiff’s damages.

105. I make it plain that this is the amount which Medicare should be repaid by the defendant out of the plaintiff’s damages. The defendant should not pay any more than this amount, and nor, as I have found, is Medicare entitled to any refund or payment by the plaintiff over and above the amount of $7,842.65 which I have found.

106. On the last day of the hearing the plaintiff raised a few additional expenses.

107. He tendered as PX11 the Plan from Sydney Pain Management Centre dated 1 May 2014. I have already found, based on the opinion of Dr Scott, that the plaintiff would have benefited from having this treatment at that time.

108. Since the plaintiff is still in pain, I am of the view that an amount should be included in his damages for treatment in accordance with the plan of the Sydney Pain Management Centre. The total amount was $7,930.40. I allow this in the plaintiff’s damages.

109. The plaintiff produced two recent receipts. PX10 is a Medicare payment of $84.80 for treatment by Ms Sathe, the counsellor. I have already found that that her treatment is necessary as a result of the accident and thus I will add that to the plaintiff’s damages.

110. Exhibit PX12 was a receipt from Wang’s Remedial Massage for $50. I have already allowed Wang’s as an appropriate expense, and I will add the $50 to the plaintiff’s damages.

111. The total of these three items is $8,065.20.

112. Finally, I have found above that the plaintiff is entitled to have the cost of his third operation to be performed by Dr Scott. That amount is $7,333.

113. I therefore allow the following amounts for the plaintiff’s out-of-pocket expenses:

1. Amount paid by the defendant pursuant to s 83 of the Act $21,610.35.

2. Reimbursement to the plaintiff for medical expenses paid $12,617.48.

3. Reimbursement to the plaintiff for expenses of travelling for treatment $5,110.60.

4. Reimbursement to Medicare $7,842.65.

5. Documents tendered on 25 August 2017 $8,065.20.

6. Future treatment expenses $7,333.

119. The total of these amounts is $62,579.28. The defendant is to have credit for $21,610.35 already paid.

120. The plaintiff did not make a specific claim for future out-of-pocket expenses. He will need further counselling and pain medication. I will include $5,000 in the judgment for future out-of-pocket expenses.

Past Economic Loss

121. At the time of the motor vehicle accident, the plaintiff had been unemployed for some time because of the significant disabilities caused by his work knee injury.

122. The motor vehicle accident caused a further reduction in the plaintiff’s earning capacity. I accept the opinion of Dr Scott that the plaintiff now has a very limited capacity for lifting with the left arm and has developed neuropathic pain in the arm with use. I accept the opinion of Dr Scott that the plaintiff is no longer fit to work in security or any form of manual labour, although his knee condition would have prevented such work in any event. I accept the opinion of Dr Scott that the plaintiff would struggle even to do retail work if he had to handle stock and lift it with his left arm. Dr Scott thought that the plaintiff would be capable of performing suitable office administrative duties with appropriate re-training but noted that there were ongoing psychological problems. I accept that opinion.

123. The plaintiff has now undertaken re-training. The plaintiff enrolled in a building and construction course done online through TAFE. He has completed a Certificate IV Course in Building Construction. He has now enrolled in another course which is 70% finished. That is a Diploma of Building and Construction at Strathfield TAFE. Once he finishes that course, the plaintiff says that he can be a site supervisor or project manager. Such a person oversees construction and supervises the scope of works and does not have to do physical work on the tools. The plaintiff expects to finish this course in the next 12 months. The plaintiff put the transcript of his academic record into evidence. When he completes his study he will be qualified to work in positions which do not place strain upon either his knee or his left arm. Whether or not the plaintiff can obtain a position in the building and construction industry is a matter of some conjecture. However, he has a positive outlook on this.

124. Even assuming that the plaintiff can obtain future work in building construction and supervision, an award of damages must be made to reflect the fact that to date the left forearm injury has interfered with and reduced his overall earning capacity.

125. The appropriate approach is to award a lump sum or “buffer” amount to reflect this reduced earning capacity.

126. Even absent the motor vehicle accident, the plaintiff would have needed several years of re-training in order to get back into the workforce, as a result of the restrictions caused by his knee injury. I find that even without the motor vehicle accident, the plaintiff would not have completed his re-training until the present time. Not only has that re-training taken some years, but the plaintiff was fixated, after the work injury, on somehow re-training himself back to physical fitness through weight lifting. The plaintiff has now realised that this is an unrealistic goal, and he has therefore taken the admirable step of pursuing study in order to enter a different field of employment, where he does not have to rely on his physical capacities.

127. For the period between the motor vehicle accident and the present time, I find that the appropriate lump sum to reflect loss of earning capacity is $10,000. While the plaintiff would have been engaged, on my view, in re-training during the past years, even had the motor vehicle accident not happened, he would have been able to do some form of casual work in that time, if the injury to his left forearm had not occurred in the motor vehicle accident.

128. For the future, I find that it is also appropriate to approach the loss on a lump sum or “buffer” basis.

129. Section 126 of the Act deals with future economic loss. It says:

“(1)    A court cannot make an award of damages for future economic loss unless the claimant first satisfies the court that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant’s most likely future circumstances but for the injury.

(2)   When a court determines the amount of any such award of damages it is required to adjust the amount of damages for future economic loss that would have been sustained on those assumptions by reference to the percentage possibility that the events concerned might have occurred but for the injury.

(3)   If the court makes an award for future economic loss, it is required to state the assumptions on which the award is based and the relevant percentage by which damages were adjusted.”

130. In spite of the apparent technical requirements of s 126 of the Act, numerous Court of Appeal decisions have accepted that in an appropriate case it is permissible to award a buffer or lump sum, without doing any fine mathematical calculations – Penrith City Council v Parks [2004] NSWCA 201; Allianz Australia Insurance Limited v Kerr [2012] NSWCA 13.

131. It is impossible to approach the calculation of the lump sum on any mathematical basis. When the plaintiff does finish his course of study, if he can obtain a job in the construction industry it is likely that he will earn far more than he would ever have earned doing security work or personal training. Nevertheless, he has a permanent interference with his earning capacity, because of the restriction on the use of his left arm.

132. The buffer amount which I award for future impairment of earning capacity is $25,000.

Attendant Care Services

133. The award of damages for provision of attendant care services is governed by s 141B of the Act. No compensation is to be awarded for such services unless they are provided for at least six hours a week and for a period of at least six consecutive months – s 141B(3).

134. The evidence does not support a finding that any necessary services have been or would be provided for at least six hours per week. The things that the plaintiff said now had to be done for him, largely by his parents, do not approach six hours per week. The plaintiff said that his parents now help him with changing his bed sheets and hanging clothes on the line to dry and taking the rubbish out. The medical evidence does not go so far as to say that the plaintiff needs domestic assistance to perform these tasks. Even if he was inhibited in performing these chores, I find that he could do them although he might have to adopt a different strategy or do them slower than if he were uninjured. In those circumstances there will be no award for gratuitous attendant care services.

135. I think it unlikely that the plaintiff will ever need commercial care provided. The plaintiff lives at home with his parents and for the moment any services he does need are provided gratuitously. Even the few things which he feels need to be done for him, are likely, in my view, to be performed in the future by family members. In those circumstances there is no award for commercial attendant care services.

Conclusion

136. I award the following heads of damages:

1. Past out-of-pocket expenses         $62,679,28

2. Future out-of-pocket expenses             $5,000

3. Past economic loss                             $10,000

4. Future economic loss                          $25,000

5. Domestic assistance                                   Nil

                    TOTAL                                          $102,679.28

137. From this amount I deduct $21,610.35 already paid by the defendant. There will therefore be judgment for $81,068.93. From this the Medicare payback is $7,842.65.

138. My orders are:

1. Judgment for the plaintiff for $81,068.93.

2. Order the defendant to pay the plaintiff’s costs.

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Decision last updated: 12 September 2017