Loughnan v State of Victoria (Department of Education and Training)

[2012] VCC 29

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted

AT MELBOURNE

CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION

Case No. CI-10-03121

GERARD LOUGHNAN	Plaintiff
v
STATE OF VICTORIA (DEPARTMENT OF EDUCATION AND TRAINING)	Defendant

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JUDGE:	HER HONOUR JUDGE K L BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:	22, 23, 24 and 28 November 2011
DATE OF JUDGMENT:	20 January 2012 (Revised)
CASE MAY BE CITED AS:	Loughnan v State of Victoria (Department of Education and Training)
MEDIUM NEUTRAL CITATION:	[2012] VCC 29

REASONS FOR JUDGMENT
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SUBJECT – ACCIDENT COMPENSATION

CATCHWORDS – Respiratory impairment and Chronic Fatigue Syndrome – pain and suffering – loss of earning capacity.

LEGISLATION CITED – Accident Compensation Act 1985, s.134AB(16)(b)

CASES CITED – Barwon Spinners v Podolak [2005] VSCA 33; Grech v Orica Australia Pty Ltd & Anor (2006) VR 602; Petkovski v Galletti 1994 1 VR 436; Filipowicz v Arnold Ribbon Co Australia Ltd (2011] VCC 287; Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69; Acir v Frosster Pty Ltd [2009] VSC 454; Dwyer v CalcoTimbers Pty Ltd No 2 [2008] VSCA 260; Advanced Wire & Cable Pty Ltd & VWA v Abdulle [2009] VSCA 170

JUDGMENT – Leave granted for both pain and suffering and loss of earning capacity.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R W McGarvie SC with Mr J F Goldberg	Maurice Blackburn Pty Ltd
For the Defendant	Mr J C Simpson	Minter Ellison

HER HONOUR:

1 This is an application for leave to bring proceedings for damages pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff between 20 October 1999 and July 2004 (“the period of employment).

2 The plaintiff seeks leave to bring proceedings for damages in relation to both pain and suffering and loss of earning capacity. These discrete heads of damage require the application of different statutory tests, as mandated by s.134AB(37) and (38).

3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s.134AB(37) of the Act.  There, “serious” is defined relevantly as meaning:

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

4       The body function relied upon in this case is respiratory function and the subsequent development of Chronic Fatigue Syndrome (“CFS”).

Outline of Section 134AB

(i)        Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages;

(ii)       The impairment of the body function must be permanent;

(iii)      The plaintiff bears an overall burden of proof upon the balance of probabilities.  Apart from the general burden, subsections (19) and (38)(e) impose specific burdens in relation to a claim for loss of earning capacity;

(iv)      By subsection (38)(c) of the Act, the impairment must have consequences in relation to each of pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being “at least very considerable” and “more than significant” or “marked”;

(v)       I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury.  Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders;

(vi)      Where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of forty per cent or more, both at the date of hearing and permanently thereafter;

(vii)     Subsections (38)(e) and (f) recite the formula by which loss of earning capacity is to be measured;

(viii)     Subsection (38)(g) requires questions of rehabilitation and retraining be considered in determining whether the forty per cent loss has been established;

(ix)      Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases;

(x)       I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak [2005] VSCA 33 and Grech v Orica Australia Pty Ltd & Anor (2006) VR 602 in reaching my conclusions.

5       The plaintiff relied upon two affidavits and gave viva voce evidence.  He was cross-examined.  The plaintiff’s current general practitioners, Dr Smith from Queensland and Dr Urie from Middle Park were required to attend for cross-examination as was consultant physician, Dr Oldmeadow.

6       In addition, both parties relied on medical reports and other material which was tendered in evidence.  I have read all the tendered material.

The Plaintiff’s Evidence

7       The plaintiff is aged fifty six, having been born in December 1955.  He is single and lives in Surfers Paradise.

8       The plaintiff completed secondary school at Charlton High School in 1973.  As a young man he was interested in art.  He then completed a Bachelor of Education at Melbourne State College in 1978, majoring in woodwork over the four year course.

9       In 1979, the plaintiff commenced teaching at Lalor High School.  He then worked for Qantas for three years as a handling agent, before returning to teaching in Charlton.  He later taught in Melbourne and then returned to Charlton.

10      In 1987, the plaintiff took a year off without pay to complete his Graduate Diploma in Interior Design at RMIT in which he majored in furniture design, graduating in 1988.

11      The plaintiff then worked in the design and architectural industry. 

12      Between 1988 and 1993, the plaintiff worked with Eggleston Macdonald (“Egglestons”), architects, town planners and interior designers, based in Carlton.  In cross-examination, the plaintiff agreed that during that period he developed a commercial application in his design skills but had lost this application in recent years.

13      In cross-examination, the plaintiff said he could not recall having time off whilst at Egglestons.  In 1992, he also did some teaching in visual arts at Melbourne University (“the University”).

14      In 1993, the plaintiff moved to New Zealand to work at the Christchurch Polytechnic, designing and implementing their Diploma in Interior Design.  He did not do any private consulting work whilst in New Zealand.

15      The plaintiff worked there for three years from January 1993 to February 1996, before returning to Australia where he worked for approximately a further four years in the design industry.  His work involved commercial interior design and fit outs, furniture design and restoration of houses.

16      From 1997 to 1998, the plaintiff also worked as a tutor at the University in the School of Architecture one day per week, teaching visual communications, keeping up his teaching skills while working four days per week in the design industry.

17      The plaintiff enjoyed working in the design industry but had always loved teaching and eventually decided to return to secondary school teaching in 1999.

Health before the period of employment

18      The plaintiff was cross-examined at length as to his health before starting work at the Taylors Lake Secondary School (“the school”) in May 1999.

19      The plaintiff had three sinus operations between the ages of twelve and twenty one.  The first two operations involved realignment of his nose.  In the third operation in 1980, the plaintiff’s nose was cauterised after an exposure to wood dust at Lalor Secondary College.

20      The plaintiff agreed he had an upper respiratory tract infection in August 1990 as noted by Dr Urie, but he has not had recurring infections since.  He could not recall having a persistent headache at that time.  Sinus infections and upper respiratory tract infections have been periodic.

21      The plaintiff also agreed as Dr Urie reported in November 1990 that he suffered from allergic rhinitis which was seasonal hay fever which he managed with standard hay fever medication. 

22      The plaintiff recalled having glandular fever in November 1992 and being hospitalised at the Alfred.  At that time, he was under the care of Dr Spelman and he was prescribed Prednisolone.

23      The plaintiff accepted he had difficulty concentrating and was exhausted at the time of that illness.  He also agreed that he had had recurrent and frequent bouts of ill health, as described by Dr Urie in a form completed by her to Social Security in December 1996.  However, he was able to start his job in New Zealand in early 1993.

24      The plaintiff could not recall complaining to Dr Urie of problems with sleep in February 1994, nor could he recall problems with sleep the following year as Dr Johnson had recorded.  The plaintiff had no memory of complaining to Dr O’Connor in 1996 of sleep disturbance.  The plaintiff attended the Epworth Sleep Clinic in 2001 and he could not recall any problems with sleep prior to that time.

25      The plaintiff could recall suffering a viral illness in August 1994 but he did not have asthma at that time as recorded by Dr Urie.

26      The plaintiff thought he had had rubella in December 1995 whilst living in Christchurch.  He had symptoms for a week and no residual effects of that illness.

27      Whilst Dr Johnson reported the plaintiff had reduced energy levels, low motivation and difficulty thinking in July 1995, the plaintiff’s recollection was that his energy levels were very good.  He worked very hard and very long hours in New Zealand.  Besides writing the diploma course, he was involved in teaching it.

28      Much of the cross-examination related to the plaintiff’s health in 1996.

29      The plaintiff was initially mistaken as to the date on which he had his tonsils removed.  He thought the tonsillectomy was in March 1996 whereas it was in March the following year.

30      In July 1996, the plaintiff suffered from viral meningitis.  This illness resulted in a massive head ache and flu like symptoms.  The plaintiff took two or three weeks off work from Davenport Campbell in Melbourne and then resumed his normal duties in facility planning and designing major projects.

31      The plaintiff could not recall suffering recurrent ill health through viral illnesses until that time and he continued to work all the time.

32      The plaintiff agreed that in August 1996 he was probably anxious if he had rubella and viral meningitis but he had never been depressed.  He could not recall in October 1996 suffering from generalised anxiety, as psychiatrist Dr O’Connor reported, because the plaintiff was working at that time.   

33      As he thought the tonsillectomy was in March 1996, the plaintiff thought he was still working at the end of 1996.  He could not therefore recall Dr Urie completing sickness benefits documentation in December 1996 and the plaintiff being off work at that time.

34      This period was in fact the lead up to the tonsillectomy in March 1997.

35      The plaintiff could recall however that after the tonsillectomy, he had very good health, made a fairly speedy recovery and he returned to fulltime work.

36      The plaintiff did not believe he had CFS in 1996 and cannot remember a diagnosis of the syndrome at that time.

37      Having been reminded the tonsillectomy was in March 1997, the plaintiff agreed that he came back to Melbourne permanently at the end of 1996.  He did not disagree that Dr Urie certified him unfit to work from December 1996 to June 1997.

38      The plaintiff did not regard a complaint in August 1998 of “URTI cough sinusitis” and referral to Mr Hooper as being a serious issue.

39      The plaintiff believed he had very good health for the twelve months before he started working at the school.  He could not recall suffering from fatigue, lethargy and recurrent sore throat.  He had had periods of very good health between December 1992 and 1999.

Return to teaching in 1999

40      The plaintiff’s last job before resuming teaching was with Geoffrey Brown & Associates, an architectural design firm, where he worked for two or three years after working with Davenport Campbell.

41      The plaintiff commenced teaching materials technology, wood, metal and graphics at the school on 10 May 1999.  He also continued his work at the University.

42      When the plaintiff started teaching at the school he reported to the principal and his teaching co coordinator that he was concerned that the woodwork equipment was not in a good state, with some of the machinery looking tired, and in particular the dust extraction system was inadequate.

43      The plaintiff tried to organise service and maintenance of the extraction system in the wood teaching and preparation areas.  At that time, an OH&S consultant firm did an inspection and audit of the wood machinery.

44      Despite the plaintiff’s efforts to have the dust extraction system monitored and maintained, it soon accumulated a lot of dust.  The plaintiff noticed considerable dust, particularly in the T1 classroom (“T1”), where there was a fixed sanding machine.  Further, some of the machines were not attached to a dust extraction system.

45      The plaintiff’s duties at the school included teaching woodwork generally and preparing raw timber for the students.  The plaintiff was primarily working with radiata pine and MDF (“the exposure”).  He was careful to wear a face mask whenever possible but could not wear one at all times while teaching.

46      In or about June or July 1999, the plaintiff started experiencing health problems as a result of the exposure.  He had suffered from seasonal hay fever for many years, but at that time he also developed redness on his face and skin and his nasal passages were inflamed and swollen, to a severity he had never before experienced.  Around that time, the plaintiff consulted both his doctor and an allergist.  

47      Before the plaintiff told his doctor of his problems following the exposure, he reported it to the school principal and the artistic department co-ordinator.  The plaintiff believed he had an allergy to pinus radiata and had reactions to a whole host of timbers used in the woodwork room.  The problem was with the sawdust, not with the actual timbers.  

48      In cross-examination, the plaintiff denied he did not take further action at that time because it was not that big a problem, saying he was trying to work and he was managing.

49      The plaintiff confirmed that he sought medical attention before he saw Dr Urie in March 2000 as it was definitely in June/July 1999 that he first had rashes and sinuses.  The plaintiff would have mentioned the problem to Dr Rhodes or Dr Britnell in July 1999.

50      The plaintiff’s symptoms continued throughout the remainder of the school year until the 1999/2000 Christmas break, when they improved significantly.

51      However, when the plaintiff returned to the school at the beginning of 2000, his nasal passage symptoms and his sinuses again worsened.  He was having respiratory problems with constantly blocked nasal passages.

52      The plaintiff then consulted his general practitioner, Dr Urie, and in about March, she referred to him to an ENT surgeon, Mr Braham, for an opinion.  Mr Braham suggested the plaintiff required sinus surgery.

53      The plaintiff sought a second opinion in about July or August 2000 from ENT surgeon, Mr Kennedy, who confirmed the need for surgery.

54      The plaintiff underwent a sinus operation in September 2000 (“the 2000 sinus operation”) performed by Mr Kennedy.  Following that operation, the plaintiff developed a staphylococcal infection (“the staph infection”) and he continued having problems with obstruction and constant nasal discharge throughout 2000 and the following year. 

55      The plaintiff submitted a WorkCover claim on 20 July 2000.

56      In cross-examination, the plaintiff confirmed the contents of the attachment to this claim form.  He denied he had sinusitis and fatigue before working at the school.  It was not until after the 2002 sinus surgery that the syndrome was diagnosed and the plaintiff had no memory of having any illness similar to it prior to that time.  He denied his description of perennial allergy in his claim form meant he had recurrent illnesses going back to the early 1990s.

57      The plaintiff was off work for the remainder of 2000 because of the severity of his sinus symptoms and respiratory problems.  His health generally seemed to be worse due to the complications resulting from the staph infection.

58      The plaintiff eventually returned to teaching at the school in January 2001 on a formal return to work program.  Having requested not to return to teaching woodwork because of his obvious problems, he was assigned to graphics and art teaching which he was happy to do, as he was qualified in that field, and he was really just keen to return to work, get active again and live life normally.

59      The room where the plaintiff taught, T11, was immediately next door to the woodwork room and the main machinery room also joined T1.  The area staff room was just opposite T1.  No maintenance work had been carried out on the extraction system in the plaintiff’s absence.  Thus, on his return to work, he believed he continued to be exposed to dust because of the close proximity of the various other rooms in which he worked at the school to T1.  He continued to suffer periods of ill health and further sinus and respiratory complications.

60      The plaintiff continued to complain about the dust and poor extraction system, including writing to the school principal, the Learning Area Coordinator and the OH&S representative.

61      By that stage, the plaintiff also started experiencing increasing fatigue, which seemed to have first developed after the 2000 sinus operation.  He was persistently tired and had a constant sore throat.  He was also experiencing generalised aches and pains in his joints and, despite prolonged sleep, he never felt refreshed and he struggled to work in regular employment.

62      Eventually the plaintiff’s sinus and respiratory symptoms worsened to such an extent that he had to stop work in July 2001.  At that stage, he felt his body was falling apart.  He was then suffering severe fatigue as well as ongoing sinus infections and continuing severe respiratory system problems.

63      The plaintiff was then being treated by Professor Czamy, Dr Oldmeadow and Mr Kevin Kane.  He was taking a lot of antibiotics and having extensive treatment to control his staph infection and his sinus and respiratory problems.

64      Eventually the plaintiff underwent further sinus surgery on 8 May 2002 (“the 2002 sinus operation”) performed by Mr Kane.  The plaintiff felt his sinus condition improved after this operation and eventually the staph infection cleared up.  His health started to improve somewhat.

65      The plaintiff returned to teaching at the school on a gradual return to work program in July 2002, teaching art/graphics, one, two and eventually three days a week, until the end of the year.  He also returned to tutoring at the University, three hours per week. 

66      The plaintiff felt no improvements had been made to the ventilation system at the school in his absence and once again his sinus and respiratory problems retuned soon after he recommenced working.  He then started experiencing massive fatigue along with frequent colds and infections.

67      The plaintiff was concerned he was being seen by the school as a whinger.  He became isolated from the staff to a certain extent, because his desk was relocated and he avoided the staff room, because of the exposure at that location.  The plaintiff believed it was around this time he was formally diagnosed with CFS which he understood was associated with his sinusitis and resulting operations.

68      The plaintiff tried to stay at work at the school throughout the rest of 2002, despite the dusty atmosphere.  He was able to work until the end of the academic year.  The plaintiff’s health again improved over the 2003/2004 summer school holidays when he was not working, and he was optimistic he would be able to return to full time working capacity and continue teaching.

69      The plaintiff again suffered with very poor health, sinus infections, respiratory problems and chronic fatigue, soon after returning to teaching at the school in 2004.  He was then working only three days a week, and eventually this was reduced to two days because of his poor health.

70      At Dr Urie’s request, the plaintiff kept a symptom diary which confirmed an increase in his problems on his return to teaching duties. 

71      The plaintiff was becoming very distressed and disillusioned because of his health problems and ongoing exposure.  At that time, he was referred by Dr Urie to a psychologist, Ms Dubois, for treatment of anxiety and depression.

72      By about July 2004, the plaintiff simply could not go on working because of his poor health.  He remained on weekly payments and sick leave throughout the rest of the school year and during that time his symptoms continued, despite not working at the school.

73      The plaintiff has not returned to the school since.  By March 2005, he returned to teaching at the University for three hours per week.  In mid 2005, the plaintiff got Influenza A, which meant he could not continuing working at the University.  He was hospitalised for two or three days for this illness.

74      Because of his inability to work full time, the plaintiff suffered financially.  He had to sell an investment property in 2005 and another in 2007.  He moved back to Charlton and looked after his mother.  They then moved to Queensland in July 2006 and the plaintiff continued to look after her until January 2007, when she entered aged care.

75      The plaintiff moved to south east Queensland as it was suggested to him by his treaters that his sinus and respiratory condition would improve if he were to move to a warmer climate.  When the plaintiff first moved there he felt there was an improvement.

76      Upon moving, the plaintiff was eventually able to commence some small private design works for the Henley Surf Lifesaving Club.  This job involved three or four days work in total, but it took the plaintiff some three or four months to complete the work, due to his chronic fatigue.

77      When the plaintiff moved to Queensland, he started seeing Dr Lesley Smith, general practitioner.  He sees her every three weeks or so and also sees Dr Urie when in Melbourne.

78      The plaintiff was involved in a serious motor vehicle accident on 17 May 2007 (“the car accident”) in which he suffered a disc prolapse at C6-7.  He underwent a fusion operation at that level, performed by Mr David de la Harpe. 

79      The car accident set the plaintiff back considerably and his chronic fatigue and anxiety and depression were made worse.  Following the car accident, the plaintiff did not work until 2008.

80      The plaintiff’s anxiety and depression worsened after the car accident injury.

81      The plaintiff deposed in November 2011 that his neck injury continues to affect him but he can manage it.  He avoids tasks or activities which cause pain, conscious of the limitations his neck has upon his physical activities.

82      In cross-examination, the plaintiff agreed his neck problem obviously limited and restricted his quality of life when he returned to Queensland in January 2008 with a serious curtailing of various activities.  He agreed the neck injury was a great disabling event. 

83      The plaintiff agreed that he had deposed that but for the car accident he would have been certainly able to increase his hours in 2008, but explained he was only working four hours then anyway.

84      The plaintiff was hoping to improve before the car accident.  He always wanted to work.  He denied it was the car accident and its consequences that prevented his expectations from occurring.

85      Whilst the fatigue problems were better under control in Queensland and he had less sinus infection, the plaintiff still had ongoing problems.  He agreed that for a time the neck injury over shadowed and became the paramount source of disability and incapacity from May 2007.  He denied his sinusitis and syndrome were only restricting him to a very modest extent since being at the school and that they were overtaken and overwhelmed by the consequences of the neck injury.

86      The plaintiff still has some problems with his neck and he has found some therapies “absolutely brilliant” for treatment.  He finds it hard with sudden movements, like when driving a car and having to look suddenly behind his right shoulder.  The neck pain is well controlled.  The plaintiff gets neck pain when tired but it is eased by Panadol.  He manages his neck extremely well and undertakes exercises.

87      The plaintiff agreed the car accident set him back but his fatigue had never been under control, however he was managing it better before the accident.

88      The plaintiff denied he got a great deal of enjoyment out of life before the car accident and said his enjoyment was very limited and that his social activities were very restricted after the exposure.

89      In November 2007, the plaintiff commenced a short course in AutoCAD to keep him active, upgrade his skills and get him out of the house.  His tutor offered him casual work, initially teaching and drawing interior design for tertiary students at the Gold Coast TAFE.  As of February 2008, the plaintiff was working between six to ten hours per week, and at times fourteen hours a week, teaching drawing and interior design.  He was paid $65 dollars per hour but due to his poor health, he was not able to work between about May and July 2009. 

90      In July 2009, the plaintiff commenced as an Industry Training Group Leader at the Gold Coast TAFE.  He last worked in that role on 17 February 2010 and has not worked since.

91      The plaintiff deposed in that job, he was performing only administrative duties with no class work or teaching.  He did timetables and delivery plans and general administrative work associated with delivering educational programs.

92      In cross-examination the plaintiff said that he also did some teaching.  His duties were very similar to his job in New Zealand.  On average, he worked twenty to thirty hours per week and was paid $43 an hour.

93      The plaintiff managed okay in this job for about two or three months and then became run down and required time off work.

94      In cross-examination, the plaintiff confirmed details of the Gold Coast TAFE job and that that salary annualised would be $71,000.  He stopped working in February 2010 because he became ill with massive CFS and sinusitis infections that were ongoing. 

95      The plaintiff did not believe he would be able to do this sort of work again.

96      In re-examination, the plaintiff confirmed difficulties increasing his hours of work in early 2009 and continuing until 2010.  Since that time, he has never felt the capacity to get back to even part time work.  It has been a dreadful disappointment because he had always been motivated to work and always wanted to be in regular employment and he has been very career focussed. 

97      The plaintiff went to New York at the end of 2009 and had to be hospitalised for one day on account of fatigue and infection.

98      When the plaintiff swore his first affidavit on 9 March 2010, he was very frustrated his health had not improved over the years since the exposure and developing CFS.  Whilst his fatigue had been under better control after he had moved to Queensland, his health suffered a set back when he was involved in the car accident.  He continued to be restricted as a result of his neck injury.

99      The plaintiff then continued to suffer from chronic fatigue and from severe colds and ongoing bouts of sinus problems, although his sinus and respiratory problems were better then than when he was teaching at the school.

100     In cross-examination, the plaintiff described how since the exposure he has constantly had one sinus infection after another and goes from one course of antibiotics to the next.  He lives on a nasal spray.  He has nasal blockage and pain all around his eyes.

101     On numerous times in cross-examination when it was repeatedly put to the plaintiff, he denied that his condition following the exposure was just a continuation of his old problems.  It was not more of the same; it was much, much more serious.  The fatigue came on first after the 2002 sinus surgery as did the diagnosis of the syndrome.

102     The plaintiff explained that on the day when he signed the TAC claim form on 7 June 2007, his sinusitis was not causing him a particular problem.  He lived with it all the time and the medication controlled it better at some times than others.  He is always aware he has sinus symptoms and problems and sometimes his sinuses are more infected than at other times.

103     In his first affidavit, the plaintiff deposed that he avoided saw dust and dust exposure.  He believed it would be impossible to go back to the private commercial industry, because he would inevitably be exposed to saw dust and dust.

104     The plaintiff deposed that had a very low sexual libido and he was not in a relationship and had not been for some time.  He avoided drinking alcohol, as that made him feel more fatigued.  He experienced a diminution of taste and smell.  He also continued to suffer from anxiety and depression.

105     The plaintiff had difficulty keeping up with his friends or mixing socially and he avoided going out for dinner, to films or attending the theatre.  His ability to participate in activities he had previously enjoyed, such as bush walking, skiing, swimming, gardening, going to the gym and walking, was then restricted.

106     The plaintiff slept for long periods of time, although that sleep was disrupted by his neck pain.  However, he still felt constantly tired.

107     In his second affidavit, sworn in November 2011, the plaintiff confirmed that because of recurring bouts of sinus problems, since 2000 he had struggled to work in regular employment.  The CFS came on a little bit later.

108     Because of the effects of CFS, the plaintiff believed he was unemployable and his ability to engage in a wide range of activities was severely reduced.  He had also been experiencing restrictions as a result of his neck injury.

109     In addition to the general practitioners he was seeing, the plaintiff was being treated by Dr Neophyton, psychologist, until early 2011, but he was not able to continue with that treatment as he could not afford it.

110     In cross-examination, the plaintiff explained that when he saw Dr McMonagle on referral from Dr Urie in October 2011, the plaintiff’s nasal passages were reasonably clear for a person with his condition but before that examination, he had been on antibiotics for a number of months trying to settle it down. 

111     The plaintiff has suffered persisting symptoms of CFS as a direct consequence of the allergic sinus disease and infective sinusitis which occurred during the period of employment at the school.

112     Since 2002, the plaintiff has suffered from persisting excessive fatigue and for a long time has experienced gross tiredness.  He is always fatigued, tired and lacking energy.  His capacity for sustained ongoing committed activity is markedly reduced. 

113     For a long time, the plaintiff has experienced an ongoing need to sleep and to sleep for prolonged periods up to as much as fourteen hours at a time.  He has no ordinary sleep pattern.  His sleep is from time to time interfered with by his neck injury, although he is better able to manage this, than he was previously.  His neck is not the main problem with sleep.

114     The major problem is that sleep is no longer refreshing.  The plaintiff always goes to bed tired but sleep does not refresh him, or restore energy and enable him to wake free of tiredness and fatigue.  This means he constantly lacks energy and he is no longer capable of doing physical or mental tasks and activities for an extended period of time.  He has no stamina and he struggles to keep going.

115     As a result, periods of useful activity are limited because of the difficulty to keep going and to maintain physical effort to complete tasks.  The plaintiff is also limited mentally and struggles to stay focussed, to concentrate and pay attention to tasks.  This has been the situation for many years.

116     For a long time, because of his illness, the plaintiff’s health has been poor and as a result his general day to day functioning is severely restricted.  As a result, he no longer has the ability to work in a professional, sustained fashion because of severe persisting bouts of tiredness.

117     Physical tasks such as gardening, laundry, completing meals and cleaning are difficult for the plaintiff.  He can do them, but he has to pace himself and often needs to rest for a prolonged period.

118     The plaintiff has similar difficulties when attending to personal administrative matters such as banking, record keeping and the like.  He gets very tired when working at a computer and needs to pace himself. 

119     The plaintiff’s symptoms are unpredictable and he is unable to control the symptoms of severe fatigue and excessive tiredness.  He is unable to predict their onset, severity and how his activities will be affected.

120     Due to persistent fatigue and excessive tiredness, the plaintiff’s mood and behaviour is severely affected.  He is often very frustrated by the limitations imposed by the CFS and the effects of recurring sinus problems.  When he gets stressed, his fatigue worsens.  While he is able to better manage away from the workplace, he continues to suffer from symptoms of stress, anxiety and depression.  He has also suffered from those symptoms following his neck injury.

121     Since 2002, the plaintiff has had regular reviews with Dr Oldmeadow, consultant physician.  He has been prescribed medication, including Dexamphetamine and Modavigil.  The plaintiff understands these are stimulants but they have not provided him with any significant sustained benefit.  While they boost his energy and strength, he has also become anxious, agitated and depressed when the effects wear off. 

122     For a long time, the plaintiff has tried natural herb based medications but not found them all to be helpful.  He now uses zinc tablets, six milligrams, three times a day; magnesium tablets twice a day; up to twelve fish oil tablets a day; glucosamine, one tablet a day; vitamin D, one a day; and vitamin B complex liquid minerals, three times a day.

123     In examination in chief, the plaintiff confirmed in the last six months he has been prescribed Favic for CFS and in relation to his sinuses he takes Klacid, Augmentin Duo Forte, Codeine, Alvesco and Zovirax.  The plaintiff also takes Endep to assist with sleep.  He supplements the sinus medication with magnesium, fish oil and various natural herbs and supplements.

124     The plaintiff has been advised by his doctors that the long term prognosis for his illness is poor and his incapacity for work is likely to remain affected in the long term. 

125     A live in treatment program for CFS suggested to the plaintiff is very expensive and he could not pay for it himself because of his mortgage commitments and low income.

126     The plaintiff no longer has the capacity to work in regular part time or casual employment because the fluctuating nature and severity of his symptoms severely interferes with his ability to undertake day to day activities.  While he continues to have restrictions for employment as a result of his neck injury, the plaintiff learnt to manage those whilst working at the TAFE in Queensland.

127     Before the onset of CFS, the plaintiff was very active, outgoing and he pursued a wide variety of interests.  He mixed and socialised easily with friends and colleagues.  He exercised regularly.  His participation in his usual activities such as gardening, planting trees, building renovation work and bush walking has been curtailed by his ongoing illness.  The injury to his neck continues to interfere with day to day activities but is not as debilitating or restrictive as his CFS.

128     The plaintiff has had an interest in working with timber and wood since a child.  Over many years he enjoyed making furniture pieces.  During the 1980s, he restored a farm house near Charlton and planted a wide variety of Australian natives around the property. 

129     Because of his persisting illness and recurrent sinusitis, the plaintiff is no longer capable of working with timber.  He is allergic to dust, vapours and toxic elements within timbers.  He last worked with timber when working at the school.

130     The plaintiff’s loss of ability to work with and make quality timber products, including furniture, has been extremely frustrating and disappointing for him.

131     In about 1996 and up to 2000, the plaintiff restored vacant shops in Melbourne and Charlton and did site clean up work and oversaw tradesmen to complete construction work and completed the design work drawings and documentation.  The plaintiff is no longer capable of this type of work with any sustainability and he is also restricted because of his neck injury.

132     Recently the plaintiff’s house in Queensland was badly affected by water leakage.  He had to engage tradesmen, plumbers and builders to undertake major repair work.  With this significant disruption at home, the plaintiff had to do a lot of physical tasks but that was very difficult for him.  He was often simply too exhausted to complete tasks like moving furniture or cleaning up after the tradesmen and doing some gardening.

133     In the past, the plaintiff has worked in commercial interior design.  He completed a significant project for Davenport in Collins Street and Mobil House in St Kilda Road.

134     In cross-examination, the plaintiff agreed in that job he was developing his skills and expertise as a commercial and interior designer.

135     The plaintiff deposed that that type of work is hands on, involving supervising tradesmen on site, finishing off and fitting timber carpentry fittings and the like.  It involves working in dusty environments, both on site and at the workshop.  If he is exposed to environments like this where there is a lot of work going on, the plaintiff’s sinusitis symptoms are exacerbated.  He experienced recurring problems when dealing recently with the water damage of his house.

136     The plaintiff is unable to sit and concentrate as he could in the past, when he enjoyed completing hand drawings as a hobby.  Again, he fatigues easily and after not much effort.  He believes his drawings in the past were of a high standard.  He still draws but he has a reduced concentration span and interest because of his fatigue.  He has learnt to manage his neck injury symptoms in such a way he can still draw.

137     The plaintiff lacks the stamina and concentration to complete fine drawing work and that has been a source of much frustration for him.  Drawing was an integral part of his work in the design industry and also a great personal interest.  The plaintiff’s capacity for work and his ability to participate and enjoy a wide range of recreational activities and hobbies has been severely affected by his persisting CFS and recurrent sinusitis.

Taxation Summary of the Plaintiff

Year Ending 30 June	Main Wage and Occupation	Gross Income from Earnings
2001	Design Engineer	$35,193 $211 $2,659
2002	Design Engineer	$31,709 $3,269
2003	Design Engineer	$41,152 $3,130
2004	Design Engineer	$39,484 $3,452

2005	Design Engineer	$33,479 $827 $1,910
2006	Design Engineer	$3,057
2007	Design Engineer	$1,485
2008	Design Engineer	$22,556 ($1,485 - $11,044)
2008	Design Engineer	$22,556 $5,695
2009	Design Engineer	$47,856 $1,407

138     The plaintiff’s taxation returns for the financial years 2001-2008 illustrate that he was earning less after the exposure than from his previous combined income from both the school and the University.

139     Having accepted that invoices for his business for the 2007 financial year totalled $11,044, the plaintiff explained in cross-examination that most of those invoices were paid in the 2007/8 financial year so they form part of the $22,556 or the $5,695 for that year.

140     The 2009 total of $47,856 was the TAFE work

Investment Properties

141     In cross-examination, the plaintiff was asked about various investment properties he had purchased.  It was suggested to him that, through his talent, skill and experience, he had the capacity to acquire, through interior design skills, refurbish, sell and turn over property.

142     When aged twenty one, the plaintiff acquired his first investment property, two quarter acre blocks near Ballarat, which he bought for a total of $9,000 and sold for $14,000 ten years later. 

143     The plaintiff next purchased an Edwardian house near Charlton in 1980 on five acres.  The plaintiff lived there whilst teaching at Charlton.  He restored the property spending about $140-$200,000.  He sold the property in January 2005 for $300,000.  It was more his woodworking skills than his design skills that enhanced the value of the property.  The plaintiff agreed he did a nice job of restoring the house.

144     The plaintiff also bought residential properties in Middle Park and Mount Waverly where he lived whilst teaching nearby.

145     In about 1999, the plaintiff purchased a number of commercial properties in High Street, Charlton.  He bought them for about $25,000 and sold them for $115,000 in 2009.  Save for drawing a front window, the plaintiff did not do any work on these properties himself.

146     The plaintiff also bought another commercial property in Charlton in 1996 for $30,000 and sold it three years later for $170,000.

147     The plaintiff denied he was buying these properties as a developer.  He agreed restoring properties was an interest of his, and that with the Charlton Edwardian property, his overriding interest was it was his residence.

148     The plaintiff did not agree that he had developed a reasonable amount of experience and skill in property development and management.  His role as a teacher and interest in education was more important to him than improving houses.  The restoration, gardening and furniture design was an interest he had developed from a hobby as a child.  He denied he had transferred the hobby into a viable activity that could generate a capacity for him to work and gain income.

149     The plaintiff confirmed he described himself as a design educator in the Swan insurance claim form signed by him in late 1992.  He had done some short term work for other people and done work on his own, but to a much smaller extent than his paid employment with architectural or design firms.  It was really more a hobby interest where he would do a colour scheme or a furniture design for someone.

150     The plaintiff agreed that he was described as a design engineer on his tax returns, a title which was first used years ago when there was no proper description of the plaintiff’s job and that title had continued to be used, unchanged.

151     The plaintiff agreed he had an ABN since they came into operation.  As at 26 March 2009, his business status was active from 3 June 2000.  He had an ABN because of the commercial lease and having to pay GST on the rent, and he used the ABN for contract work.  The plaintiff did not know that he carried on a design business.  He used his ABN for any necessary legal requirements.  He does not need the ABN now as he is not doing any work and he has no interior design work planned.

152     The plaintiff purchased 13 Scala Court in Surfers Paradise in 2002 for $490,000 on which there was a current mortgage of $480,000.  He later paid $1,000,000 for the adjoining properties.  The plaintiff advised that since purchasing the recent Queensland property, Gold Coast prices had dropped by about forty per cent.

153     The plaintiff presently has 9 La Scala Court on the market for $975,000, from which he intends to pay the mortgage.

154     The plaintiff was cross-examined about a number of business invoices.

155     The design work the plaintiff was trying to undertake in June 1997 was a sketch plan for a house in Carlton and for another house in Donald.  He did some planning for his mother’s house and submitted invoices. 

156     It was suggested to the plaintiff that in the fifteen month period between July 2006 and September 2007 he earned $54,041.  The plaintiff disputed this was the case.  He explained that the large invoice addressed to his mother dated 30 September 2007 for $40,755, involved payment to him for only sixteen or eighteen hours work and the balance the plaintiff paid to other tradesmen.

157     The plaintiff disagreed that the invoices demonstrated a capacity to work and generate income in his specialised field of design work to an amount that met his requirements.  He also disagreed he had the discretion as to how and in what circumstances to decide to work with his design skills to generate income.

158     The plaintiff did not describe himself as an active share trader at the present time, but he did purchase a number of shares at the beginning of 2009.

159     The plaintiff denied he had a capacity to continue with design work.  He can draw for a few hours or do a little bit of work, but could not necessarily work as a self-employed design consultant.  He would not be able to meet the client’s needs of working quickly, effectively, efficiently and under pressure to deadlines.  In terms of property development, he would be able only to maintain the swimming pool and check the filter at a property when he felt well enough. 

160     The plaintiff would not be able to undertake work in the design industry and concentrate on the tasks and meet deadlines.  His difficulty is persistent application at tasks.  It would be difficult to wake up on time to get to work at 9 am.  During the day, fatigue and tiredness would give him a great problem. 

161     The drawing involved in the job requires a degree of concentration.  The plaintiff would not notice he had made mistakes or put in the incorrect dimensions.  He would not be able to necessarily drive a car at a certain time because he would be tired and fatigued and he could not concentrate. 

162     Sometimes the plaintiff gets up tired, but generally he gets tired during the day.  The difficulty with CFS is that he cannot predict its pattern. 

163     The plaintiff accepted he suffered tiredness associated with various illnesses before the exposure and that his concentration and ability to sleep was affected but not to the extent as it is now with his CFS.  In the past he had normal tiredness associated with viral illnesses.  He disputed he had always had tiredness and fatigue of some kind, at least since the glandular fever, because the recovery period was different.  He had recovered from all those other pre-exposure illnesses.  With CFS, “it is not about recovering.”  He still had massive problems of recovery.  He wakes up unrefreshed and there is a longer recovery period after physical exertion. 

The Plaintiff’s Medical Evidence

164     The plaintiff has attended the Middle Park Medical Clinic since 1990.

165     In her first report of September 2000, Dr Urie from that clinic noted the plaintiff had a past history of seasonal hay fever and occasional episodes of sinusitis.

166     Dr Urie reported that approximately two months after starting work at the school, the plaintiff developed symptoms of rhinitis, nasal obstruction, throat soreness, facial swelling and redness and skin irritation.  These symptoms occurred particularly when the plaintiff was exposed to the wood dust of pinus radiata, the timber he was using approximately ninety per cent of the time.  Dr Urie noted symptoms settled when the plaintiff was on holidays.

167     The plaintiff told Dr Urie that the work rooms were poorly ventilated and always dusty.  The plaintiff used a face mask, but could not teach without removing it.  He complained to the principal on a number of occasions but no improvements were made.  The plaintiff also experienced frequent episodes of sinusitis resulting in headaches, fatigue, facial pain and purulent nasal discharge.  He was treated with Claratyne, Rhinocort, a cortisone nasal spray and antibiotics and in March 2000 he was referred to an ENT specialist, Mr Braham.

168     A CT scan demonstrated significant sinus disease with obscuring of the osteomeatal complex.  Mr Braham then advised the plaintiff, if his symptoms did not settle with conservative treatment, endoscopic sino surgery would have to be considered.  The plaintiff continued to have symptoms but was able to keep working despite feeling tired.

169     Dr Urie saw the plaintiff on 21 July 2000 with symptoms and signs of severe acute sinusitis following a flare up which had developed at work with pine dust the previous week.  The plaintiff was quite unwell with severe headaches, lethargy, purulent nasal discharge, cough and, on examination, he had generalised sinus tenderness. 

170     The plaintiff was treated with antibiotics, oral cortisone and antihistamines.  Dr Urie referred him to Dr Czarny, allergist, who felt that pollens were obviously responsible for the plaintiff’s seasonal symptoms; however, Dr Czarny concluded it was likely that the fine dust generated by the sanding of wood was the cause of the worsening of the plaintiff’s perennial symptoms.  He recommended a course of Prednisolone and surgery if there was no improvement.

171     Despite conservative treatment, the plaintiff’s condition did not improve very much and he continued to have the same symptoms. 

172     The plaintiff was reviewed by Mr Braham and also another ENT specialist, Mr Kennedy, both of whom recommended sinus surgery.  A CT scan confirmed the presence of frontal ethmoidal and antral disease, which Mr Kennedy thought was not going to clear with conservative measures.  Accordingly, the plaintiff underwent endoscopic sinus surgery on 12 September 2000.  He developed post operative sinusitis two weeks later and was improving on examination later in September.

173     Dr Urie then thought that the plaintiff’s work had been a significant contributing factor to his current illness of chronic severe sinusitis.  Without the exposure to high level of sawdust, she thought the plaintiff was unlikely to have developed the severe symptoms of allergic rhinitis and subsequent sinusitis over a prolonged period of time which resulted in chronic nasal obstruction and subsequent sinusitis.

174     Dr Urie noted in past years, the plaintiff had been treated for occasional bouts of sinusitis, usually in spring, or after a viral illness in winter.  On each occasion his symptoms had settled with a course of antibiotics and he had never before experienced sinusitis of the severity of his recent illness.

175     In 1980, the plaintiff had had sinus surgery for persistent sinusitis which developed after teaching woodwork at Lalor High School in 1979. 

176     Dr Urie reported the plaintiff was an atopic individual with known allergies to pollens and dust mites, but prior to his recently developed allergy to the saw dust, he had always been able to manage his symptoms with anti histamines and cortisone nasal sprays.  Another symptom which she thought was highly suggestive of allergy to pine dust was the itchy, red, swollen rash which the plaintiff developed on his exposed skin, especially his face, when in contact with the saw dust. 

177     At that stage, Dr Urie thought the duration of the plaintiff’s incapacity would depend on his response to surgery and noted then he was unlikely to return to his former employment as a woodwork and technology teacher, because of his risk of recurrent allergic symptoms when re-exposed to saw dust.

178     In November 2000, Dr Urie supported a transfer of the plaintiff from the school on medical grounds.

179     On 13 May 2002, Dr Urie requested physiotherapy for the plaintiff, noting that in addition to acute sinusitis, he suffered from fatigue.

180     In her report dated 18 December 2002, Dr Urie noted that in October 2000, the plaintiff was aware of increasing fatigue requiring twelve hours’ sleep at night and persisting sinusitis, with a very severe bout in late July 2001, resulting in him being unable to continue work. 

181     She noted the CT scan in August 2001 and a referral to Dr Kemp, who specialised in alternative medicine. 

182     Dr Urie noted a continuing struggle with persisting sinus problems and fatigue during 2001 into early 2002, and subsequent referrals at that stage, and a further CT scan in March 2002.

183     She confirmed that the plaintiff’s condition was chronic sinusitis and, as a consequence of that, he had developed chronic fatigue, which itself was aggravated by recurring infections.

184     As of the end of 2002, she thought the plaintiff would be unable to return to work full time indefinitely as he suffered from a chronic debilitating condition which required considerable rest and ongoing treatment.

185     Dr Urie referred the plaintiff to allergist Dr Weiner in November 2003.

186     Dr Urie reported in March 2004, at which time, as agreed by the Medical Panel, the plaintiff had been rostered to work three days a week, a minimum of fifteen hours a week.

187     Dr Urie noted that on many occasions throughout 2003 and as had already been the case in 2004, the plaintiff was unable to work his rostered hours because of illness; namely, exacerbations of sinusitis and increasing symptoms of CFS, including fatigue, myalgia and joint pains.

188     Dr Urie noted since returning to work in late 2002, the symptoms of CFS and bouts of sinusitis had been worse during term time and subsequently improved during time away from work.  She thought that, although no longer teaching in T1, the plaintiff was still being exposed to dust from that room.

189     Dr Urie then advised the plaintiff to keep a symptom diary.  She noted during the week prior to returning to work, he had rated his sinusitis/rhinitis symptoms consistently at one out of ten and fatigue at three out of ten.  He was keen to try working four days a week, as he was feeling stronger.

190     Within twenty four hours of returning to work, the plaintiff recorded a significant increase in fatigue symptoms up to seven out of ten, with an improvement over the following weekend to four out of ten.  This pattern was repeated the following week, with increasing fatigue levels, and increased sinusitis rhinitis scores, leading to the plaintiff being unable to complete the four rostered days and reducing his workload to three days a week.

191     Dr Urie confirmed the proximity of the other working areas to T1 and she made a number of suggestions in relation to the plaintiff’s workplace.

192     At that stage, Dr Urie noted the plaintiff was struggling to work the three days and he went to bed as soon as he returned home to sleep for an hour or two before dinner.  He spent four days of the week resting, sleeping and struggling to get on with his life.

193     Dr Urie reported again in February 2005.  The plaintiff’s payments had then been ceased on the basis of reports from Dr Brown and Dr Cole.  Dr Urie expressed some concern that the plaintiff’s claim was being assessed as a new claim, when it was really a continuation of his old claim.

194     Dr Urie confirmed the plaintiff’s problems staying at work in early 2004 and also confirmed the symptom diary.  She thought the plaintiff would be fit to return to some form of part time work in late February or early March, provided he remained well.  She was concerned he was likely to suffer from further relapses if he resumed teaching at the school.

195     Dr Urie thought the plaintiff had a continuing impairment due to his compensable injury.  In her view, his ongoing incapacity was directly caused by his original injury; namely, wood dust exposure leading to chronic recurrent sinusitis and associated CFS.  When the plaintiff was fit to return to work, she expected him to be able to work up to fifteen hours per week, but she thought he should begin on a graduated basis and have frequent rest breaks.  In her view, it was impossible to say when the plaintiff’s CFS would completely recover.

196     In August 2007, Dr Urie reported to the plaintiff’s solicitors, forwarding hand written clinical notes from 1990 to the present, save for the period when he was living in New Zealand between 1995 and 1996.

197     Dr Urie thought the history of the plaintiff’s CFS could only be properly understood in the context of its relationship with the chronic sinusitis which both preceded and aggravated his chronic fatigue.  She noted both sinusitis and chronic fatigue had been accepted by the insurer, although it was the latter which now rendered the plaintiff unfit for work.

198     Dr Urie noted the plaintiff continued to have a work capacity until he became ill with severe Influenza A in October 2005 and had not been able to work since that time due to his worsening CFS.

199     Dr Urie described the plaintiff suffering episodic sinusitis for a number of years with, prior to mid 2000, the episodes being often seasonal and coinciding with peak hay fever episodes.  She noted those episodes of sinusitis generally responded well to short courses of antibiotics.

200     In her view, the plaintiff’s real problem with recurrent sinusitis developed in 2000, whilst at the school, and being frequently exposed to airborne wood dust, which resulted in severe nasal allergy symptoms causing sinusitis, skin rashes, cough and other symptoms. 

201     In March 2000, the first episode of sinusitis occurred.  It was quite severe and prolonged and the plaintiff was referred to Mr Braham.  A further episode occurred in late July 2000.  The infection became very severe and the plaintiff failed to respond to medical treatment and there was subsequent specialist referral.

202     In terms of CFS, Dr Urie described how the plaintiff experienced fatigue associated with his bouts of sinusitis.  Initially it was assumed that his ongoing fatigue was due to the underlying infection and not a separate condition.  As the fatigue symptoms became more debilitating over the course of 2001, concerns were expressed about the possibility of other causes for the plaintiff’s fatigue.

203     During the first semester in 2001, the plaintiff complained he would get tired and often needed more sleep than usual.  He was then working full time and had recently recovered from a bout of sinusitis. 

204     During early 2001, the plaintiff was consulting one of Dr Urie’s colleagues who was concerned the plaintiff’s fatigue may have another underlying cause and referred him to Dr Kemp. 

205     In October 2001, the plaintiff was referred to a sleep specialist, who found him to have mild moderate sleep apnoea and it was suspected that was contributing to his fatigue.

206     Towards the end of 2001, the plaintiff’s fatigue symptoms became increasingly debilitating and he was experiencing other symptoms, including muscle and joint pains and difficulty with cognitive functions.

207     Dr Urie noted it became apparent that the plaintiff’s fatigue was out of proportion to the sinusitis and it was suspected he was also developing CFS.  In late 2001, the plaintiff was referred to Dr Oldmeadow, a physician with particular interest in CFS who confirmed the diagnosis of CFS in March 2002.

208     In terms of sinusitis and allergic rhinitis, Dr Urie has prescribed antibiotics including Augmentin, Bactim, Flagyl, Keflin, Ceclor, Doxycycline, Ery, Dicloxacillin and Ciproxon.  The plaintiff has also been provided with saline sprays and RhinoFlow machine, oral Prednisolone, inhaled steroids, antihistamines, antifungal lozenges, a desensitisation course to pollen, endoscopic surgery twice and laser acupuncture.  Since early 2002, Dexamphetamine has been prescribed for chronic fatigue to be taken twice daily to reduce fatigue symptoms.  The plaintiff has also been prescribed Endep, Celebrex, Tramadol and Stilnox.

209     As of August 2007, the plaintiff found living in Queensland that his nasal allergy symptoms were not a problem whilst there and he had much less problem with sinusitis.  His CFS remained quite debilitating and it worsened since severe gastroenteritis in May 2007.

210     The plaintiff continued to suffer from extreme tiredness and fatigue, problems with cognitive function, sleeping for up to eighteen hours per day, musculoskeletal symptoms, and psychological symptoms with an adjustment disorder as a result of his chronic disability and interference with his social life.

211     Dr Urie reported that when she first met the plaintiff in 1996, he was struggling to recover from a series of viral infections, including glandular fever, rubella and viral meningitis.  He was also suffering from recurrent tonsillitis and was quite fatigued.

212     Following the tonsillectomy in March 1997, the plaintiff made a full recovery and was able to return to full time work within a short space of time.  He was also quite active and set about renovating his house and working at several jobs.

213     Dr Urie noted CFS had had a profound impact on all aspects of the plaintiff’s life.  In her view, the duration of that illness was uncertain and his future was very unpredictable.  She could not foresee a time when he would be able to return to meaningful employment, given his current level of disability.

214     In March 2008, Dr Urie reported the plaintiff’s sinusitis was well under control except for occasional seasonal bouts of sinusitis, resulting from exposure to local grass pollens.  The plaintiff was spending much of his time in Queensland and as a result, his bouts were even less frequent than if he were living in Victoria.

215     CFS remained the plaintiff’s major cause of ongoing disability in relation to which he continued to be severely disabled.  In addition to those symptoms, he appeared to be more susceptible to infection and tended to get more severe symptoms when he was unwell.  Dr Urie noted hospitalisation with Influenza A in 2005, and again in mid 2007, with acute gastroenteritis.

216     Dr Urie noted over the past few years, the plaintiff had also suffered from anxiety and depressive symptoms as a result of his ongoing ill health and inability to function at anywhere near his formal level of activity and he had been having counselling to help him cope.

217     Dr Urie did not consider the plaintiff fit to work in any capacity, nor likely to be so in the foreseeable future.  She thought the plaintiff would benefit from undertaking a four week CFS recovery program, which was quite expensive, costing $7,000.

218     Dr Urie reported in May 2010, confirming the diagnosis of the plaintiff’s clinical condition remained unchanged; namely, recurrent sinusitis due to the wood exposure and CFS which had developed because of his recurring bouts of sinusitis.

219     Dr Urie noted the mechanism by which CFS developed was unknown.  However, it appeared there was a significant link between chronic and recurrent sinusitis and the development of CFS in many CFS sufferers.  She remained of the view that the plaintiff’s continuing illnesses were consistent with the stated cause.  She considered his ongoing illness was directly attributable to the illness which developed as a result of his exposure to wood; i.e., chronic sinusitis, resulting in CFS.  At that stage, she thought the plaintiff’s major disability was his CFS.  However, she noted he continued to have episodes of moderately severe prolonged sinusitis.

220     Dr Urie noted one consequence of CFS was an increase of susceptibility to infection and a prolonged recovery period once the infection was treated.  She noted that in 2008, the plaintiff suffered from viral meningitis that resulted in a relapse of his CFS and he took several months to regain his former level of health.

221     With a number of attempts to work and difficulty doing so, Dr Urie thought when she saw the plaintiff in November 2010 that, as he advised, he had come to the conclusion after trying to work longer hours, he could realistically manage no more than twelve hours a week spread over a two day, six hour shift of administration work and had planned to continue that work in 2010.  However, he was unable to sustain that level of work and once again was off work as a result of increasing fatigue, memory impairment and other chronic fatigue symptoms.

222     In terms of prognosis, Dr Urie thought the plaintiff had to use nasal sprays, antihistamines and a steroid nasal spray to reduce the risk of developing sinusitis and he needed prolonged courses of antibiotics when he did experience further recurrences of sinusitis.  He continued to struggle with CFS and was unable to work.

223     In her report of October 2010, Dr Urie summarised some of the plaintiff’s past history.  She noted the plaintiff suffered from a period of fatigue during the later part of 1996 early 1997, followed and associated with a number of infections: namely, rubella, December 1995; viral meningitis, July 1996; and recurrent tonsillitis through 1996 to 1997. 

224     Because of her concern with persisting fatigue, she referred the plaintiff to Dr Spelman, an infectious diseases physician, who had treated the plaintiff in 1992 when he had a severe bout of glandular fever.  When Dr Spelman saw the plaintiff in late 1996, he thought the plaintiff’s fatigue was likely to be due to insufficient time to convalesce after sequential infections.  Dr Urie noted during that time the plaintiff had frequent courses of antibiotics for recurrent tonsillitis. Following surgery in March 1997, his energy levels rapidly returned to normal.  Soon thereafter the plaintiff was able to return to full time work as an interior designer as well as doing three hours’ tutoring a week at the University.

225     Following the 2000 sinus surgery, the plaintiff developed persisting staph infection, sinusitis and CFS.

226     The fatigue the plaintiff experienced in 1996 to 1997 was different from his present condition.  It settled rapidly after the tonsillectomy and was therefore more likely to be due to chronic sepsis in his tonsils.  In comparison, his current CFS symptoms had persisted long after the successful treatment of his chronic sinusitis.

227     The plaintiff’s CFS was also associated with other symptoms which were not present at the time of his fatigue due to chronic tonsillitis; namely, chronic impairment, generalised muscle joint aches, orthostatic hypotension and disturbed sleep patterns, as well as fatigue.

228     Dr Urie noted that the plaintiff had treatment for sinusitis in August 1998 and a further episode in January 1999.  Both episodes were treated with antibiotics and did not require follow up treatment.

229     The plaintiff started work at the school in May 1999.  His next presentation for sinusitis was on 9 June 1999.  The condition did not respond well to treatment and he returned on 3 July for further treatment.  This bout lasted over six weeks and was associated with significant fatigue.  The next mention of sinusitis was in March 2000, when Dr Urie noted the plaintiff was working in a poorly ventilated room.

230     The plaintiff represented in July 2000 with severe sinusitis.  That was the infection which persisted and subsequently required endoscopic sinus surgery in September 2002.  Dr Urie noted unfortunately the plaintiff did not recover as expected, developing a severe post operative staph infection and subsequently CFS. 

231     Dr Urie had no doubt the plaintiff’s employment as a woodwork teacher subsequent to 20 October 1999 was a material contributing factor to his recurrent sinusitis and CFS.  She thought he was currently unfit for all work and suggested he undertake the chronic fatigue recovery program.

232     In a report of April 2011, Dr Urie noted she had seen the plaintiff in November 2010 and 8 February 2011.  On both occasions, he was feeling exhausted, sleeping much of the time.  Joint pains had continued and were now interfering with his sleep.

233     Dr Urie last saw the plaintiff the week before the hearing.  As the plaintiff had told her on earlier examinations in 2011, he had had ongoing sinus infections again for most of the year and was still feeling exhausted and not able to do any more than he had been able to do previously. 

234     Dr Urie confirmed that was pretty much the plaintiff’s presentation over effectively the last ten years.  He always looked exhausted.  He did not like spending time in Melbourne because of his allergies but he wanted to keep in touch with her. 

235     Over the last three visits, the plaintiff’s sinusitis had been a feature of his presentation.  Dr Urie described that condition as nasal congestion, usually purulent nasal discharge and it made the plaintiff feel a lot more exhausted and gave him headaches.  He often had a sore throat. 

236     Dr Urie thought the findings on the 2011 CT scan were consistent with the problems the plaintiff had presented with back in 1999.  The scans at that time showed opacification of the maxillary antrae and ethmoidal sinuses and sphenoid sinus was again showing up.  In her view, clearly there was an ongoing process which meant the plaintiff was still having considerable trouble with sinusitis.  The 2011 CT scan showed mucous or mucosal thickening, or thickening of the lining of the sinuses.  The sinus problem was quite severe back in 1999 and still is.

237     In cross-examination, Dr Urie explained that Dr Hooper’s letter in 1998 dealt with the thickening of the nasal passages rather than the sinuses which was the problem evident on the 2011 CT scan.

238     Dr Urie was asked about the 1996 letter to Dr Spelman and her reference to chronic fatigue in the DSS form she had completed at that time.

239     Dr Urie agreed she suspected the plaintiff might have had the syndrome in 1996.  She referred him to Dr Spelman because she was concerned about the repeated infections.  However, Dr Spelman thought it was more likely the plaintiff was just having one infection after another and he was not then suffering from CFS.

240     In Dr Urie’s view, after the tonsillectomy, the plaintiff quickly recovered.  He was fine and his energy levels recovered which was not what happens with CFS.  Whilst there was a period of incapacity after the tonsillectomy and she confirmed she certified the plaintiff unfit for work to June 1997 and he then got back to full time work

241     Dr Urie confirmed her note of 30 April 1997 which set out the plaintiff “hoped to resume work soon – less fatigue”.

242     The condition Dr Urie described in her 1996 letter to Dr Spelman was not CFS

243     Dr Urie described fatigue as a very nebulous symptom.  A sufferer could be chronically fatigued for a whole range of reasons, not just CFS.  CFS was a collection of symptoms characterised by overwhelming fatigue which is one symptom.  It is a diagnosis that is made all other causes for fatigue have been excluded.

244     Dr Urie confirmed that since the middle of 2000, when the plaintiff had developed a persisting infection, he had been unwell.  He really never recovered after the 2000 sinus surgery. 

245     Dr Urie confirmed her view the syndrome developed as a result of recurrent bouts of sinusitis.  From her own experience treating patients with CFS, all had had chronic recurrent and difficult to treat sinusitis as well as CFS.

246     Dr Urie confirmed that the plaintiff struggled with symptoms including hypersomnolence, fatigue and getting extremely tired in early 2010.  Noting the fluctuating nature of the syndrome, Dr Urie described the plaintiff’s syndrome as very incapacitating and severe for him.

247     Dr Urie confirmed the plaintiff would prefer to be at work but unfortunately he had had relapses of his chronic fatigue.  Over most of this year, he had had ongoing sinus infections, so he was back to being as unwell as he was before.  She could not foresee a time when he would be able to return to meaningful employment, given his level of disability.

248     In cross-examination, Dr Urie disagreed the fact the plaintiff had had surgery in 1980 was itself an indication of an ongoing chronic condition in relation to his sinuses.  Before starting at the school, the plaintiff had occasional bouts of sinusitis that required treatment, but he had not has chronic persisting sinusitis.  It was a totally different condition that developed after the exposure.  Before then, there would be one entry or less in her notes per year or less of sinus infections requiring surgery.

249     Dr Urie disagreed with the proposition that the plaintiff had been increasingly unwell since 1992 as there were times when he had been quite well, although with episodes of being unwell.  He had had a number of separate illnesses.  He was not suffering from a progressive condition.

250     Dr Urie thought the problem was not just the exposure to the dust; it was the damage that was caused to the plaintiff’s nose as a result of the infection he had as a result of the persisting exposure.  Before working at the school, episodes of sinusitis were infrequent, probably more frequent than minor, but still the plaintiff did not have sinusitis chronically.  He had allergies which predisposed him to more bouts of sinusitis than someone who did not have them.  The plaintiff had had previous sinus surgery, so clearly he did have a predisposition for that sort of thing to happen, but he had never had the situation that he had since he was exposed to the wood dust and formaldehyde probably over a long period of time in the wood work room.

251     In Dr Urie’s view, the allergen is not the cause of the plaintiff’s fatigue.  The infection caused by the allergen is the problem.  It is actually the infection and the response of the immune system to the infection.

252     Dr Urie confirmed the plaintiff’s symptoms of sinusitis had worsened this year.  He had more infections and he had never really recovered since the severe infection back in 2000.

253     The plaintiff’s sinusitis before the exposure was more episodic and mostly related to spring or to viral illnesses with single attendances with her in only August 1998 and January 1999.

254     The plaintiff’s symptoms of the syndrome have remained.  They have fluctuated in severity and certainly at times the plaintiff was able to work, but when he was trying to work, he could virtually do nothing else.  He would spend the rest of the time in bed. 

255     Dr Urie thought the exposure was longer than the period of actual teaching.  She agreed the plaintiff is no longer exposed to wood dust, “but all she knew was that he had been exposed, he got very ill and he had not recovered”.

256     In her opinion, the CFS was triggered and there did not need to be something continuing to drive it into the future because it was already occurring.  With chronic fatigue, it affected the immune system, so people become more susceptible to infection and it affected the way their body works.

257     Dr Urie disagreed that the trigger for the CFS was the plaintiff’s glandular fever in 1992, as he had recovered from it.  If the plaintiff had CFS, he would not have recovered from the glandular fever at that time.

258     Dr Urie thought the recent examination by Dr McMonagle did not show the plaintiff’s sinuses were working properly.  Dr McMonagle had noted the presence of mucous which suggested that the sinuses were probably infected.  The reason that Dr McMonagle said the plaintiff was going reasonably well, was that the plaintiff obviously did not have a major obstruction that required surgery and that was Dr McMonagle’s focus, because he was the surgeon.  It did not mean the plaintiff’s nose was normal or that it was functioning without any problem.

259     Dr Czarny, allergist, saw the plaintiff on referral from Dr Urie in August 2000.

260     Dr Czarny reported to Dr Urie that the plaintiff had been bothered by seasonal hay fever since primary school.  He had also had nasal surgery.

261     The plaintiff told Dr Czarny of problems similar to those he experienced in spring after two months of working in the woodwork section at the school.  The plaintiff experienced rhinitis, nasal obstruction, throat soreness and persistent facial and periorbital swelling and pain, as well as redness of the face.  He felt those symptoms cleared almost completely when he was on holidays and that they were triggered by wood dust, particularly pinus radiata.

262     Following examination, Dr Czarny thought it was more likely that the fine dust generated by wood sanding was the cause of the worsening, noting the strong reaction to pollens responsible for the plaintiff’s seasonal symptoms.  Dr Czarny suggested Prednisolone for a couple of weeks and if no success, he thought surgery would be the only option.

263     On review, in March 2001, Dr Czarny noted the Prednisolone had not helped and the plaintiff had undergone surgery in September 2000, following which he had a staph infection. 

264     Dr Czarny noted the plaintiff continued to be bothered by tiredness, fatigability, nausea and recurrent sore throats and post nasal discharge and he needed to sleep ten to twelve hours a day.

265     Dr Czarny thought the plaintiff would require desensitisation to grasses before spring but, in addition to pollen sensitivity, he noted the plaintiff had many symptoms that were suggestive of CFS and he believed the plaintiff’s general symptoms were disproportionate to the upper airway pathology.

266     Dr Czarny noted on further discussion, it appeared the plaintiff had been vaguely unwell since 1992, when he had a severe episode of glandular fever and therefore Dr Czarny thought it would be worthwhile obtaining an opinion from someone who was an expert in the field of chronic fatigue, such as Dr Oldmeadow. 

267     Dr Czarny wrote to Dr Urie again in October 2001, after the plaintiff had been seen by Dr Kemp.

268     Dr Czarny noted the plaintiff had chronic sinusitis which appeared to have been triggered by an infection and he had other symptoms which could be attributed to CFS or a conversion reaction.  He noted, unfortunately the plaintiff had not settled with appropriate treatment.  With this in mind and with the plaintiff’s inability to continue with a productive lifestyle in Melbourne, he encouraged a trial period in south east Queensland to see whether the plaintiff felt any better.

269     Dr Czarny concluded on the basis of the plaintiff’s history, it was possible that exposure to pinus radiata and other woods aggravated his underlying hay fever and sinus disease.  He noted however the underlying problem was a genetic one, and due to typical seasonal pollen and probably dust mite allergy.  He thought there was no reason why the plaintiff could not work in an environment where he was not exposed to wood dust.

270     Dr Czarny noted in addition to his respiratory symptoms, the plaintiff also had many features of CFS and he understood the plaintiff was going for further advice in that matter.

271     Dr Czarny reviewed the plaintiff in December 2010, having last seen him in February 2002.  At that stage, he noted the plaintiff had been living in Surfers Paradise since 2006 and continued to be bothered by debilitating fatigue, which restricted his ability to work. 

409     Dr Urie provided similar certificates following examinations on 8 December 2000 and 10 September 2001.  “Chronic fatigue syndrome?” was also noted on the last certificate.

410 By letter dated 10 July 2008, CGU advised the plaintiff that his Claim for Compensation pursuant to s.98C of the Act in relation to injuries which he claimed to have sustained as a result of employment on 20 July 2000 had been accepted; namely, psychiatric condition and severe sinusitis.  His claim in relation to sleep disorder and chronic fatigue was denied.

The Defendant’s Medical Evidence

411     Dr Urie wrote to Dr Spelman on 9 December 1996.  She thanked him for reviewing the plaintiff whom she advised had ongoing fatigue and recurrent infections.  She noted the plaintiff had had glandular fever in December 1992 and recently had a very nasty bout of cold sores associated with sore throat, cough and sputum.  In July, he had had viral meningitis and in January 1995, rubella.  She noted he had to give up work because of chronic fatigue and recurrent ill health.  He had become depressed.

412     Mr Robin Hooper wrote to Dr Urie in July 1998.  He noted the plaintiff presented with a long history of recurrent right sided nose bleeds and a long history of nasal obstructions and mucousy rhinorrhea.  He had numerous operations on his nose going back to childhood with a septoplasty and trimming of the inferior turbinates in 1981 and also a tonsillectomy at the age forty.

413     Mr Hooper diagnosed recurrent right anterior epistaxes and chronic vasomotor rhinopathy.  He cauterised the vessel on the right side of the plaintiff’s nasal septum.

414     Mr Hooper reported that anterior rhinoscopy revealed a pale, markedly oedematous nasal mucosa.  There was a residual deflection of the nasal septum to the right.  The plaintiff had bilateral partial turbinectomies.  However, he still had significant swelling of the mucosa over the turbinate.  A prominent vessel was seen on the right side of the nasal septum anteroinferiorly.  No abnormalities were seen on the posterior rhinoscopy.

415     Dr Urie wrote a “to whom it may concern” letter in November 2000 advising that the plaintiff had been recently treated for severe sinusitis with allergic rhinitis secondary to timber dust exposure.  She strongly supported his application for a transfer from his current school on medical grounds, noting it was in an area with high pollen levels and that she thought he would better cope working at an inner urban school, where such exposure would be reduced.

416     Dr Smith reported in December 2007.  She noted she had seen the plaintiff on 2 and 26 November 2007.  He had been involved in a car accident in May 2007 and a cervical fusion was planned.

417     On examination, the plaintiff had severe cervical pain radiating to his shoulders and arms and marked restriction of his neck and he had to wear a collar.  He had extreme difficulty attending to basic activities of daily living.  She then thought he was unable to perform his usual work as an interior designer and would be incapacitated for some months after the fusion surgery and he would then require rehabilitation.  She thought the plaintiff required assistance with house and garden duties.

418     Dr Brent McMonagle, head and neck specialist, examined the plaintiff on referral from Dr Smith in October 2011.

419     Dr McMonagle reported to Dr Smith that the plaintiff presented with chronic rhinosinusitis and sinonasal polyposis for many years. 

420     Dr McMonagle thought that at present, the plaintiff had symmetrical nasal obstruction.  He was not sure whether he had an obstructive sleep apnoea.  The plaintiff had had yellow to greenish rhinorrhea and post nasal drip, but that had improved a little.

421     The plaintiff had had headaches in the retro-orbital regions and the cheeks as well.  He was quite severely hyposmic with some sneezing and nasal pruritis, worse in spring.  He had never had asthma.

422     Dr McMonagle noted previous allergy tests were positive to many different allergens.  The plaintiff had seen many different allergy specialists and had several attempts at immunotherapy.

423     Dr McMonagle noted the plaintiff had sinus surgery in 2000 and 2002.  In 2011, the plaintiff had had ten to twelve courses of antibiotics but no oral steroids.  He currently used saline sprays.  A recent CT scan showed severe sinonasal polyposis but reasonable nasal airways. 

424     Dr McMonagle noted past medical history, medication and allergies were not significant.  He noted the plaintiff was an interior designer.

425     Examinations of the ear and throat were normal.  Examination of the external nose was also normal.  The plaintiff had quite significant numbers of polyps and polypoid change within the sinuses but actually quite reasonable nasal airways and midline nasal septum.

426     Dr McMonagle commented at the moment things were going reasonably well.  Therefore along with Dr Smith he would observe if and when things deteriorated, then of course he would be more than happy to see the plaintiff again.

The Defendant’s Medico-Legal Evidence

427     Dr Malcolm Brown, occupational physician, examined the plaintiff in December 2004 on behalf of CGU.

428     On examination, the plaintiff appeared to be in good health and there was no acute distress.  Apart from some nasal blockage, he had no cough, shortness of breath, wheeze or other evidence of respiratory conditions.  He had no rashes on his skin and no grime on his hands or other evidence of recent manual work.

429     Dr Brown thought, although the plaintiff had a long history of hay fever, it was likely his symptoms of sinusitis were directly attributable to exposure to wood dust at work.

430     On the basis of the available information, Dr Brown was of the opinion the plaintiff’s sinusitis and associated fatigue since mid 2002 were unlikely to be related to his employment. 

431     Dr Brown doubted the exposure after the plaintiff stopped teaching and also noted the plaintiff was very sensitive to grasses, dust mites and possibly other substances, so there were other valid sources which could have caused the recurrence of his condition. 

432     On the basis that the plaintiff’s recurrent sinusitis in 2003 to 2004 had not been work related, Dr Brown did not believe that the normal teaching duties in that period were likely to have been of the nature to cause aggravation of the plaintiff’s underlying sinusitis. 

433     Dr Brown then thought the plaintiff’s sinusitis seemed to have resolved with no recurrences for six months.  He noted the plaintiff said he was left with some fatigue, but that was improving.  He believed the plaintiff would have the capacity to return to work on full hours before the commencement of 2005 school year.

434     Despite his view as to the latter period of employment, Dr Brown accepted the plaintiff had sustained an injury in 1999/2000, but work was not a significant contributing factor after that time.

Correspondence

435     The plaintiff advised the school principal in July 1999 that he wanted to vary his terms of employment taking into account his obligations at the University.

436     In March 2002, the school principal, Mr Pell wrote to NRMA advising the plaintiff sought a reduction in his time fraction at the school because he needed to care for his mother.  This letter was in response to the plaintiff’s application dated 18 February 2002.

437     The plaintiff also advised Mr Pell in June 2003, that he may need some leave for a period of time, depending on his involvement in his mother’s care.

Tax Invoices

438     There were a number of tax invoices sent by the plaintiff to various clients, the largest of which was sent to the plaintiff’s mother on 30 September 2007 for $37,050 plus GST. 

2007 Claim Documents

439     The plaintiff submitted a Claim for Compensation to the TAC signed on 7 June 2007.

440     In terms of previous health, the plaintiff described a sinus upper respiratory inflammation that was work related.  There was a severe sinus wood dust allergy, not causing any problems at that time.  He also had chronic fatigue. 

441     The plaintiff described himself as a teacher/designer.  In addition to working at the University, he was self employed design drawing.  He had a job to do some design drawing for Henley Surf Lifesaving Club, Adelaide, where he was paid $5,000, due to be completed by end of May together with three or four design projects for ECPM Project Management, South Australia, and other clients.

442     Also in terms of relevant medical history, the plaintiff said he had sinusitis presently under control and not causing problems.  He also mentioned chronic fatigue – “see Dr Oldmeadow for review every three to four months, no medication required”.

TAC Statement

443     On 29 July 2008, the plaintiff made a statement in support of his TAC impairment claim.

444     In that statement, there was no reference to chronic fatigue or sinusitis and it referred solely to the plaintiff’s neck injury and psychological reaction to the car accident.  The plaintiff set out he experienced difficulty in carrying out domestic and employment activities. 

445     The plaintiff set out that prior to the accident, he was a self-employed interior decorator trading as Gerard Loughnan Design.  He carried out project work for a number of clients and he attached a number of tax invoices for work performed from July 2006 until the car accident.  At the time of the car accident, he was working fifteen hours per week earning $65 per hour.

Section 93 Affidavit

446     The plaintiff swore an affidavit on 8 December 2008 in support of his s.93 application relating to the car accident.

447     The plaintiff deposed to his sinus problem relating to work inhalation and the need for surgery and also the problem of significant fatigue and the suggestion he move to Queensland. 

448     Whilst in Queensland, the plaintiff’s sinus problems were reduced and he felt as a consequence his chronic fatigue was much better controlled and he hoped to get his working life back together.

449     The plaintiff deposed during the second half of 2007, he was greatly disabled by his neck condition.  But for the car accident, he would have been able, certainly by 2008, to increase his hours in a combination of tutoring and research assistant roles in private design positions.

450     The plaintiff then continued to suffer virtually constant pain in his neck.  His fatigue problems had been made worse by the pain and restriction caused by his neck injury.

451     The plaintiff deposed prior to the car accident, he had obtained a great deal of enjoyment out of gardening, walking, swimming, the gym, drawing and going out to dinner or films.  These social activities were restricted to some extent by the fatigue/sinus condition and all had been greatly restricted by his neck injury.  His sleep was often disturbed by neck pain and anxiety and he found it difficult to get comfortable in bed.

452     The plaintiff had previously suffered some depression associated with the fatigue/sinus condition.  He had become somewhat more depressed since the car accident, with, in addition, frequent nightmares.  He had suffered financially because of the way his neck injury restricted his work and he was very worried about the effect it would have on his ability to work in the future.

DEET Payslip

453     A pay document from the Department of Education, Training and Arts in Queensland indicated the plaintiff’s year to date gross earnings of $38,238 as at 15 January 2010.

The Defendant’s Supplementary Material

454     The defendant relied on Department of Social Security documents completed by Dr Urie in December 1996.  She set out that the plaintiff’s diagnosis included chronic fatigue since glandular fever in December 1992, which resulted in the plaintiff having difficulty concentrating and being exhausted by mid afternoon.

455     Dr Urie also noted recurrent infections, including tonsillitis, mouth ulcers, cold sores, rubella December 1995 and viral meningitis in 1996.

456     Dr Urie described depression with onset in January 1994 secondary to chronic illness.  She noted asthma, usually controlled with medication, and reflux oesophagitis, 1994 to 1995, which had improved with Losec,

457     She noted the plaintiff had been hospitalised in the last five years four times and the most recent was an overnight admission to The Alfred with viral meningitis in July 1996.

458     She certified the plaintiff unfit for work for a month after November 1992 because of glandular fever.

459     Dr Urie provided a medical certificate for sickness allowance purposes to the Department of Social Security following an examination on 4 December 1996.  She certified the plaintiff unfit for work from 4 December 1996 to 4 March 1997.  In a later document of 30 April 1997, she certified him unfit for work from 5 March to 5 June 1997.

460     That certification followed examination on 26 February 1997 when it was noted the plaintiff had chronic fatigue, recurrent infections, including tonsillitis.  She then thought the plaintiff was likely to be able to work full time or part time in three to six months.

461     The plaintiff made a claim on insurers Swann Insurance and National and General in late 1992 in relation to his mortgage and car payments when he was incapacitated for work because of glandular fever.  The plaintiff described himself in these documents as a design educator, lecturing and teaching and interior design work.

Overview

462     I accept the plaintiff suffered a compensable condition, namely severe sinusitis, as a result of the exposure at the school during the period of employment, initially teaching woodwork and later whilst teaching near the T1 woodwork room.

463 The plaintiff’s original Claim for Compensation for severe sinusitis was accepted and weekly payments were made at various times. The plaintiff’s claim pursuant to s.98C of the Act was accepted in terms of his severe sinusitis and a psychiatric condition but denied in relation to the conditions of sleep disorder and CFS.

464     In terms of causation, allergist, Dr Czarny thought it was likely the exposure to fine dust generated by wood aggravated the plaintiff’s sinus disease.  The ongoing causal relationship between the exposure and the severe sinusitis has been confirmed by medico legal examiner Mr Mooney and treaters Dr Czarny, Dr Oldmeadow, Dr Urie and Dr Smith.  As Dr Oldmeadow and Dr Urie explained in their viva voce evidence, there is no requirement that the exposure to the allergen continue for there to be an ongoing relationship between the exposure and the plaintiff’s sinusitis and CFS.

465     Dr Brown, occupational physician, is the only medical practitioner with a contrary view limiting the causal relationship to the period of actual woodwork teaching and thereafter attributing the plaintiff’s sinus condition to other causes. 

466     I accept as a consequence of the exposure and the development of a severe sinus infection in mid 2000 requiring surgery following which the plaintiff developed golden staph, the plaintiff has subsequently suffered CFS.

467     There is no medical opinion contrary to the view that the severe sinusitis following the exposure has resulted in development of CFS from which the plaintiff continues to suffer.  Most significantly, CFS expert Dr Oldmeadow supports this view as do the plaintiff’s current general practitioners.

Pre-Accident Condition

468     Much of the cross-examination in this case was concerned with the plaintiff’s sinus condition before the exposure.

469     In dealing with the issue of the seriousness of the plaintiff’s present condition, counsel for the defendant submitted that the approach of the Full Court of the Victorian Supreme Court in Petkovski v Galletti [1994] 1 VR, a case involving a application pursuant to the Transport Accident Act,  should be followed.

470     In that case at 436 the Full Court accepted the proposition that:

“A comparison must be made of the condition of the applicant immediately before the accident with his condition thereafter and an assessment made of the extent of that additional impairment and if that additional impairment was not serious, so it was said then leave must be refused.”

471     Counsel for the defendant submitted that when one compared the plaintiff’s pre accident sinus condition to his current state following the exposure, any resultant additional impairment was not serious.

472     Counsel for the plaintiff submitted the principles enunciated by Ashley JA in the Court of Appeal in Grech v Orica Australia Pty Ltd & Anor (supra) were applicable to the present application pursuant to the Act.

473     At paragraph 58 in Grech, Ashley JA stated that the test of serious injury in an application pursuant to the Act was whether the plaintiff could establish that the subject compensable injury materially contributed to the impairment and would continue to do so permanently.

474     The reasoning of Ashley JA has been recently followed by Judge Misso in Filipowicz v Arnold Ribbon Co Australia [2011] VCC 287.

475     Whilst in my view there is a difference between these approaches, I am satisfied that whatever approach is taken, the plaintiff has a permanent serious impairment resulting from the exposure.  The consequences of the aggravation of any pre existing sinus condition are serious and there is also an ongoing material contribution from the compensable injury to the plaintiff’s present impairment.

476     Clearly, before the exposure, the plaintiff had suffered from episodes of sinusitis and various other illnesses.  He required three weeks off work for viral meningitis in mid 1996, a week off work for rubella in late 1995 and most significantly about six months off work due to tonsil problems and related infection from December 1996 to mid 1997.

477     However, the consensus of medical opinion is that these various illnesses are unrelated to the subsequent development of CFS following the exposure and later surgery.

478     Further, after the 1997 tonsillectomy the plaintiff recovered well as Dr Urie confirmed and he was able to work full time in various jobs until the exposure.

479     Prior to the exposure, problems with sinusitis were episodic with attendances on Dr Urie in August 1998 and January 1999 which required prescription of antibiotics only and did not interfere with the plaintiff’s work or enjoyment of life.

480     I accept as Dr Oldmeadow, Dr Urie and Dr Smith confirmed, the plaintiff did not have an ongoing sinus condition from the early 1990s which was simply temporarily aggravated by the exposure.

481     Dr Urie confirmed that prior to the diagnosis of CFS in 2002, whilst the plaintiff at times had chronic fatigue and tiredness, he did not have the syndrome.

482     In particular, Dr Urie confirmed that in 1996-1997 when the plaintiff was ill leading up to the March 1997 tonsillectomy, her description of chronic fatigue at that time was not part of a diagnosis of the syndrome and importantly, the plaintiff recovered from the tonsillectomy to the point where he was able to return to work in mid 1997.

483     Also, as Dr Urie confirmed at that time, whilst the plaintiff had been referred to Mr Spelman with suspected chronic fatigue syndrome, he did not consider the plaintiff was suffering from the syndrome at that time.

484     I accept the medical evidence that prior to the exposure the plaintiff recovered from a number of episodes of illness and those earlier illnesses did not result in long term chronic illness.

485     Despite the various illnesses prior to the exposure, the plaintiff was able to maintain his design/architectural work and also tutoring at the University.

486     Further the plaintiff enjoyed an active social life and he was able to enjoy his various recreational interests and hobbies.

487     I accept that at the time of the exposure the plaintiff was functioning well and he did not have an ongoing sinus illness of any significance.

Credit

488     As Maxwell P said in Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69 at paragraph 12:

“The weight to be attached to the plaintiff’s account of the pain experienced will, of course, depend upon an assessment of the plaintiff’s credibility.”

489     In this case I found the plaintiff to be a genuine credible witness who gave truthful answers and tried his best during extensive cross-examination.

490     I reject the submissions of counsel for the defendant that the plaintiff was not a reliable witness.  The plaintiff was cross-examined about a wide range of medical conditions over a very extensive period and any error as to dates, such as the date of the tonsillectomy, was not of concern when considering the credibility of his evidence.

491     In that extensive cross-examination, the plaintiff agreed that he had time off work and was hospitalised at different times with various illnesses, starting with sinus surgery in 1980 and then glandular fever in 1992 and various illnesses continuing during the 1990s.

492     In cross-examination, there was no real challenge to the plaintiff’s evidence as to his present complaints or his description of his restrictions domestically, socially and in terms of his employment capacity.

493     Further, there is no medical opinion that the plaintiff was exaggerating his complaints nor were there any inconsistencies in the plaintiff’s behaviour noted on examination.  To the contrary, medical examiners confirmed the genuineness of the plaintiff’s complaints and their ongoing relationship to CFS, resulting from the exposure related sinusitis.

The Car Accident

494     Clearly, the plaintiff’s injuries in the car accident were substantial and overwhelmed the state of his general physical condition after May 2007 until surgery and for a time subsequent thereto.

495     However in more recent times, there has been a considerable improvement in the plaintiff’s neck condition, confirmed by his treating doctors who are also of the view that the plaintiff’s neck condition has not had a significant ongoing affect on his CFS.

496     In any event, the neck injury in the car accident is a supervening event which is relevant to the issue of damages at trial if the court is satisfied there is a serious injury in relation to the claimed compensable condition – per Forrest J in Acir v Frosster Pty Ltd (2009) VSC 454.

Consequences

497     I accept that the plaintiff suffers debilitating symptoms as a result of the syndrome.

498     Fatigue is the predominant symptom of the syndrome with the plaintiff requiring extended periods of sleep at night and also during the day, despite which he is left feeling unrested.

499     The fatigue is such that at times, as Dr Smith described, the plaintiff has had to stop in the car on his way to medical appointments and go home because he could not finish the journey.  Further, as Dr Urie confirmed, the plaintiff has presented in an exhausted manner on a consistent basis with a worsening of his situation in 2010, continuing to the present time.

500     Related to the fatigue are problems with cognitive function and concentrating on particular tasks particularly those related to work duties.

501     Because of these factors, I accept that the plaintiff has no capacity to return to his pre-injury work as a design drawer or as a teacher as evidenced by his difficulties in that regard in continuing to work since the exposure.

502     In my view the plaintiff is a stoic.  He battled on with his teaching job until he could no longer cope.  He then attempted other jobs, with increasing difficulty as confirmed by his treating doctors, until he was no longer able to continue working in February 2010.

503     As Nettle JA commented in Dwyer v CalcoTimbers Pty Ltd No 2 [2008] VSCA 260, at paragraph 4, “it would be wrongheaded if a stoic applicant were treated less favourably than another who, being of less strength of character, simply resigned himself to his injury” – a view shared by Maxwell P in Haden Engineering Pty Ltd v McKinnon (supra) at paragraph 13.

504     The plaintiff’s inability to return to teaching or design work or other suitable employment, even on a part time basis is confirmed by his treating doctors and medico legal opinion.  There is no medical opinion to the contrary.

505     Further, I do not accept that the plaintiff has a capacity to work in property development as submitted by counsel for the defendant.  In particular, the plaintiff has little or no ability to work on site or engage in any hands on work as evidenced by his difficulties when repair work was required on his Queensland home after the floods.  His cognitive difficulties associated with fatigue would also preclude the plaintiff from effectively participating in work in this area.

506     The plaintiff does not carry on a business as a share trader and whilst at times he may derive income from his share portfolio, the level of such income obviously depends on the state of the market and cannot be properly described as income from personal exertion.  

507     Taking into account all the evidence, I am satisfied that the plaintiff is totally incapacitated for employment.

508     In my view, the interference with the plaintiff’s work resulting from the severe sinusitis condition and the resulting syndrome is a consequence which when judged by comparison with other cases in the range of possible impairments may be fairly described as being more than significant or marked and as being at least very considerable.

509 Having satisfied the narrative requirements under Section 134AB(38) of the Act, in order to obtain leave in relation to loss of earning capacity, the plaintiff must also establish that –

(a) at the date of the hearing, he has a loss of earning capacity of forty per cent or more – s.134AB(38)(e)(i); and also

(b)    after the date of hearing, the relevant loss of earning capacity will continue permanently – s.134AB(38)(e)(ii).

510     The measurement of loss of earning capacity is set out in paragraph (f) which requires a comparison between:

(i)     “without injury” earnings;  and

(ii)     “after injury” earnings.

511     The former must be calculated by reference to the six year period specified in s.134AB(38)(f).

512     “Without injury” earnings consist of the gross income (expressed at an annual rate) that the worker was earning or was capable of earning from personal exertion or would have earned or would have been capable of earning from personal exertion had the injury not occurred.

513     It is to be calculated by reference to that part of the period within three years before and three years after the injury as most fairly reflects the worker’s earning capacity.

514     The plaintiff carries the onus of proof in relation to economic loss and particularly in establishing satisfaction of the criteria in paragraphs (e), (f) and (g) therein – see Barwon Spinners Pty Ltd & Ors v Podolak (supra) at paragraph 70.

515     I am therefore required to determine a “without injury” earnings figure, and submissions were made by counsel in this respect.

516     Counsel for the plaintiff suggested the figure of $65,414, based on what the plaintiff would have earned as a teacher at the end of the relevant three-year statutory period.  Sixty per cent of that amount is $39,246 per annum and $754 gross per week.  Figures suggested by counsel for the defendant on a somewhat different analysis were in a slightly lower range with a without injury earnings figure of approximately $50,000.

517     A figure in the range of those suggested by both counsel is reasonable in this case.

518     The plaintiff’s present earnings from physical exertion are nil.

519     As I am satisfied that the plaintiff does not have a capacity for suitable employment, he does not have the capacity to earn in excess of sixty per cent of the suggested without injury earnings figures.

520 Therefore, the plaintiff has established that he has a loss of earning capacity of forty per cent or more within the meaning of s.134AB(38)(e) of the Act.

521     Given the consensus of medical opinion that the plaintiff’s prognosis is poor and the fact that the syndrome has persisted for over nine years or so, without any sustained improvement, I am satisfied that the consequences of the plaintiff’s sinusitis and the resultant syndrome are permanent.

522     I am also required to consider issues of retraining and rehabilitation pursuant to subsection (g).

523     In light of my findings as to the plaintiff’s impairment and his incapacity for employment, I am satisfied there is no rehabilitation or retraining that would be appropriate to be undertaken by him which would alter the situation that he has a permanent loss of earning capacity of forty per cent or more.  As rehabilitation and retraining have nothing to offer the plaintiff in terms of his capacity for employment, the plaintiff has satisfied the requirements of s.134AB(38)(g). 

524     Having satisfied the test laid down by the Act in relation to loss of earning capacity, then the plaintiff is at large to make a claim for damages, i.e. both for pain and suffering and loss of earning capacity:  See Forrest J in Acir (supra), at paragraph 147, and Advanced Wire & Cable Pty Ltd & VWA v Abdulle [2009] VSCA 170.

525     Accordingly, I grant leave to the plaintiff to bring proceedings for damages for pain and suffering and loss of earning capacity.

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