Maketic v OSMANBAustralian Securities and Investments Commission
[2001] WADC 70
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: MAKETIC -v- OSMANBASIC & ANOR [2001] WADC 70
CORAM: CHARTERS DCJ
HEARD: 5-9, 12-16 FEBRUARY 2001
DELIVERED : 28 MARCH 2001
FILE NO/S: CIV 2296 of 1999
BETWEEN: SENAD MAKETIC
Plaintiff
AND
ZIZAD OSMANBASIC
First DefendantUNITED CONSTRUCTIONS PTY LTD
Second Defendant
Catchwords:
Negligence - Liability and damages - Motor vehicle and work accidents - Turns on its own facts
Legislation:
Workers' Compensation and Assistance Act, 1981
Occupiers Liability Act, 1985
Result:
Judgment against first defendant for $27,750
The claim against the second defendant is dismissed
Representation:
Counsel:
Plaintiff: Mr T H Offer
First Defendant : Mr K N Allan
Second Defendant : Mr M W Schwikkard
Solicitors:
Plaintiff: Leonard Cohen & Co
First Defendant : K N Allan
Second Defendant : McAuliffe Williams & Partners
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Andjelic v Marsland (1996) 70 ALJR 435
Bowen v Tutte [1990] A Tort Rep 81-043
Brown v Rodrigues, unreported; FCt SCt of WA; Library No 970334; 3 July 1997
Graham v Baker (1961) 106 CLR 340
Jones v Dunkel (1959) 101 CLR 298
Keen v MacKay [1999] WASCA 193
Kingshott v Goodyear Tyre & Rubber Co Aust Ltd (No 2) (1987) 8 NSWLR 707
Neill v NSW Fresh Food & Ice Pty Ltd (1963) 108 CLR 362
Southgate v Waterford (1990) 21 NSWLR 427
State Government Insurance Commission v Toomath, unreported; FCt SCt of WA; Library No 9602185; 24 April 1996
Thomas v O'Shea (1989) A Tort Rep 80-251
Wylde v 'Arriaza, unreported; FCt SCt of WA; Library No 970359; 23 July 1997
CHARTERS DCJ: The plaintiff is a 41 year old former boilermaker and welder who claims damages for personal injury resulting from two accidents.
The first was a motor vehicle accident on 15 June 1995 when he was a passenger in a vehicle driven by the first defendant travelling along Hutton Street towards Osborne Park when the vehicle in which he was travelling hit the back of a utility. He claims to have lost consciousness when his head broke the windscreen and he was taken to hospital by ambulance, having suffered head and neck injuries; he had pieces of glass lodged in his left eye. He claims he also suffered a painful wrist which at the time he thought was fractured.
He was given a neck collar and x‑rays were taken.
The second accident happened at work whilst he was employed by the second defendant. On 2 February 1998 he was cutting sections off a steel pipe placed upon trestles.
His claim is that whilst cutting off a section with a propane torch the section fell upon two tyres the plaintiff had been directed to place on the floor underneath the pipe and the section of piping, having struck the tyres, bounced back and struck the plaintiff in the left knee pushing him backwards on to a steel table behind him. He suffered injury to his knee and back.
The first defendant admits liability for negligence but puts the plaintiff to proof of damage.
The second defendant admits that the plaintiff in the course of his employment with it was cutting steel pipe into sections and was involved in an accident, but it does not admit the circumstances of the accident nor the nature of the injuries said to have been suffered.
The pleadings
As a consequence of the first accident the plaintiff claims he suffered the following injuries:
bruising and cuts to the head;
neck pain - with 25 per cent permanent disability to the cervical spine; regular discomfort in his back;
shoulder pain;
referred numbness in both arms;
regular headaches;
glass in left eye - he has periodic trouble with blurred vision and pain in the left eye restricting his ability to drive, read newspapers and discomfort with exposure to sun;
fractured right wrist - he now has constant right wrist pain; and
insomnia.
He is restricted in his playing with the children, helping his wife with household chores and playing any active sport.
He has undergone treatment which included physiotherapy, hydrotherapy, use of a soft neck collar, medication, facet joint injections and operation to move glass from the left eye.
He claims also to have been totally incapacitated for a period of approximately six months and upon securing work as a mechanic lost this employment after three months due to his injuries preventing him from carrying out heavy aspects of the work. He was then unable to secure employment until June 1997. He has incurred, and will continue to incur, costs associated with treatment and rehabilitation for his injuries and travelling to and from medical appointments.
Concerning the second accident the plaintiff pleads that the second defendant was the occupier of the premises in which the accident occurred and failed to take reasonable care to ensure that people entering upon its premises did not suffer injury or damage in breach of s 5 of the Occupiers Liability Act 1985 - the placing of tyres on the floor whilst the plaintiff was cutting the pipe constituted an unreasonable danger.
Furthermore, the second defendant as the employer of the plaintiff failed to take all reasonable steps and precautions to ensure the safety of its employees whilst the latter were engaged in carrying out their duties.
The plaintiff pleads that he was directed by his supervisor to carry out the task of cutting a steel pipe into sections. The second defendant was negligent in failing to provide assistance to the plaintiff by failing to ensure that at least one and possibly two other workers would assist him with the task of cutting the steel pipe, turning the pipe while the plaintiff was cutting it; it failed to provide an overhead crane to secure the piece of piping that was to be cut away from the rest of the pipe and prevent it simply falling away when the cutting was completed; knowingly and recklessly it refused the request of the plaintiff, prior to the accident, that he be provided with assistance from other workers to turn the pipe whilst cutting and for an overhead crane to be used to secure the pipe while cutting; and created an obvious hazard by directing the plaintiff to place tyres on the floor below whilst cutting the pipe.
Further or alternatively, that the defendant was in breach of an implied term of the employment to take reasonable care for the plaintiff during the course of the latter's employment.
As a consequence of this accident the plaintiff pleads that he suffered immediate and severe pain in the left knee, continuing pain and instability in the left knee, permanent disability in the left knee as well as weakness in the whole left leg and pain radiating through to the lower back, pain in the lower back where he struck the table, pain in the lower back exacerbated by the use of crutches, permanent disability of 25 per cent to the lower back, depression and stomach problems, diarrhoea and vomiting, due to ingestion of medication.
The treatment he has undergone includes x‑rays, arthroscopic surgery to the left knee, use of crutches, use of orthopaedic bracket before and after surgery, use of elastic bandage for the knee and upper thigh of the left leg, physiotherapy, hydrotherapy, psychotherapy and medication.
Loss of amenities resulting from the second accident include his inability now to participate in social sports such as soccer, basketball, tennis, table tennis, swimming and running; his relationship with his wife and children has deteriorated, he has disturbed sleep patterns, he has difficulty driving a car and difficulty standing, crouching and squatting for prolonged periods.
He claims economic loss by reason of his inability to earn an income.
General background
I shall relate parts of the plaintiff's evidence and will later comment upon his veracity and reliability as a witness.
The plaintiff was born in Bosnia where he attended primary school until he was 15 years old and then attended high school to the age of 19 years. He went to University and studied mechanical engineering where he became a fully qualified engineer and studied a business management course for two years where he graduated and obtained a certificate in business management.
He was employed as a technician/designer for a mining company and this work involved drafting future plans for the company. He became a supervisor responsible for 212 people who were engaged in underground mining work, trucking coal, using trains to carry coal, separating coal into different sizes and types of coal and selling and buying different types of coal.
During the political upheavals it became difficult for Muslim people like the plaintiff to live in Bosnia and there was an economic crisis which led to the plaintiff leaving his employment.
He then became self‑employed as a contractor using his truck to carry goods of various kinds until 1991 when war broke out in Bosnia. The plaintiff served in the armed forces and was also involved in aid distribution. In the course of this war the plaintiff's brother was killed in 1993.
In 1995 the plaintiff sold his truck and migrated to Western Australia where he had a sister living.
On arrival in Western Australia the plaintiff attended language school to improve his English and my impression is that he has a good grasp of the English language - he can both comprehend and speak the language reasonably fluently. An interpreter was engaged in the trial but the plaintiff's command of the English language was clearly adequate for him to manage by himself save perhaps for a limited number of words of which he was not familiar.
On 15 June 1995 the plaintiff was a passenger in a car driven by the first defendant, a friend, when travelling along Hutton Street towards Osborne Park it hit the back of a utility.
The plaintiff claims he could not remember anything about the impact but was told later that his head broke the windscreen - he was taken by ambulance to Sir Charles Gairdner Hospital where pieces of glass were, he says, found in his left eye. He had a painful left wrist which he claimed was broken.
He was given a neck collar and x‑rays were taken. The doctors wanted to keep the plaintiff at the hospital but he did not remain and the next day he saw his general practitioner, Dr Tan, who prescribed Panadol and Panadeine Forte. He claimed that the left side of his head and neck was very sore and physiotherapy was recommended which he undertook for some eight months. He also had facet joint injections to the right side of his neck which were given to him by Drs Graziotti, Silbert, Tan, McAuliffe and Finch. These, he said, did not help to relieve his symptoms at all.
Following the car accident he suffered, and continues to suffer, from disturbed sleep, his neck and shoulders are very sore and he cannot become comfortable. He continues to suffer from severe headaches every day.
He then looked for work and claims to have sent out 150 job applications; on many of those applications he was required to disclose that he was suffering from an injury. He was not successful in obtaining employment until 16 April 1997 when he was employed by Paul Toscana. His duties then were servicing cars but he was required to undertake other heavier duties including servicing trucks and front end loaders. Some of the work involved heavy lifting such as lifting a garage door and breaking up a concrete floor with a sledgehammer. He worked on a full‑time basis and was paid about $450 net per week.
He remained with that employment until 6 June 1997 and claims he left because he was unable to carry out the heavier duties due to his injuries from the motor vehicle accident.
The plaintiff applied for work with the second defendant which he obtained on 17 June 1997. He claims that he was then still suffering from neck pain from the car accident but not severe enough to prevent him working.
He filled in an application for employment (exhibit 14) on 17 June 1997 sections of which concerned his health and underwent a pre‑employment medical test. In exhibit 14 to the following questions he gave these answers:
"Any restrictions on where you can work?---No.
To the best of your knowledge and belief are you of sound health?---Yes.
Please indicate whether you have a disability or injury likely to affect your work performance or which could recur or be aggravated by the type of work for which you are applying?---No."
He claims that he was able to carry out the tests with some pain but was careful not to show that pain to the nurse as he needed the work. His answers to some of the questions, he says, were not truthful for that reason. He passed the medical test and was employed as a boilermaker; he worked long hours earning $500 to $900 net per week.
There was, he claims, a minor accident on 3 November 1997 when he hit his head on a metal construction in the workshop requiring his being off work for a week and he was then able to recommence his normal duties on a full‑time basis. His neck and headaches returned to the state that existed prior to 3 November 1997.
His duties as a boilermaker involved welding, cutting and assembling.
The plaintiff was not qualified in Western Australia as a boilermaker/welder - he has applied for a certificate but has been advised simply to find a job.
One of his duties with the second defendant was to cut large steel pipes into pieces with a steel cutting machine using cutting equipment. The steel pipes were placed on trestles about one metre off the ground and he used an instrument with a propane torch to cut around the pipe. His instructions were to place two motor vehicle tyres one on top of another upon the ground to protect the concrete floor following the section of steel pipe falling to the floor. The section of pipe which was required to be cut and which would fall upon the tyres weighed approximately 150kg, was approximately 60 to 70cm in diameter, 50 to 60mm thick and 50 to 60cm long.
On 2 February 1998 the plaintiff was cutting a steel pipe placed upon the trestle. He had no other workers to assist him to turn the pipe as he was cutting and as he had no such assistance he had to move the cutting machine around and underneath the pipe.
When the half metre section of pipe fell to the tyres it bounced back, hit the plaintiff in the left knee pushing him backwards on to a steel table that was behind him. He immediately felt severe pain in his left knee and some pain to his low back.
He claims he was then taken to Murdoch Hospital where x‑rays were taken and he was sent to see the company doctor, Dr R Gillett.
The plaintiff claimed that his left knee became very swollen and he was referred to Mr Tiller who sent him for an MRI scan as a result of which Mr Tiller performed an arthroscopy on 28 April 1998.
To 28 April 1998 the plaintiff continued to work on a graduated basis in the storeroom and performed some restricted boilermaking duties. He wore a knee brace for some of the time whilst working.
Thereafter the plaintiff used crutches to move around and started experiencing increased back pain about 26 June when he went to see his general practitioner. He participated in six months of physiotherapy and hydrotherapy.
As a consequence of this accident the plaintiff claims that he is unable to stand for longer than 30 minutes at a time, he is uncomfortable sitting longer than 30 minutes at a time, he has difficulty driving a car with manual transmission as use of the clutch increases his knee and back pain; he finds he cannot sleep easily having approximately three to four hours sleep per night. He cannot, as I understand his evidence, engage in sport he used to play before his accident - soccer, basketball, tennis and table tennis and he cannot swim in summer due to his knee, neck and lower back problems.
The plaintiff claims he cannot drive his car due to severe headache since he cannot stand being in the sunlight.
The injuries, he claims, have interfered with his domestic and social life. He has been prescribed anti‑depressants and pain killers but the medication is not helping a great deal and he has been advised to stop taking tablets as he was taking too many. Nevertheless he is currently taking a number of tablets which he has listed and continues to suffer from depression, pain to his neck, left knee and low back and headaches; he has some pain to the right wrist and cannot see properly with his left eye.
The first defendant claims that the plaintiff substantially recovered following the motor vehicle accident and any symptoms he may now have are not related to the motor vehicle accident.
Furthermore, his credibility is challenged on a number of bases: it is denied that the plaintiff suffered any significant injury on 2 February 1998. Medical attention, as opposed to treatment in the first aid room, was not sought until 26 February 1998. The plaintiff furthermore does not suffer from the disabilities he has presented to the medical practitioners and a surveillance video tape has been tendered in evidence filming his activities in June, October and November 1998, October 1999 and October 2000: these activities are said to be greatly inconsistent with his presentation to the doctors.
I shall deal next with the matter of the second defendant's liability for the work accident.
Liability of the second defendant
I find that the length and weight of the section of steel pipe to be cut were approximately as the plaintiff described them to be. The section was indeed heavy.
I accept also that the plaintiff was directed to place car tyres, one on top of another, to protect the concrete floor. The pipe was cut about one metre above floor level.
I observe that Mr Fadil Islamovic supported the plaintiff's evidence of the tyres being placed, when he did this work, one on top of another.
The plaintiff had to work alongside the pipe and the area where the cut the section would fall. There was no cage or barrier to prevent contact with the plaintiff should the section bounce off the tyres.
The section when it was cut fell upon the tyres and bounced off to strike the plaintiff's left knee.
An accident was plainly foreseeable should the section strike the tyres and bounce away. Upon the section bouncing in the plaintiff's direction it was foreseeable he would suffer injury to the foot or leg.
There were many ways, none of which was impractical, to prevent such injury. Some material could have been placed on the floor which would not have had the reflective characteristics of a tyre; the height of the pipe from the floor could have been reduced with equipment to turn the pipe; or, as suggested by the plaintiff, an overhead gantry crane, shortly before the final cut, could have been attached to the pipe to suspend it upon the cut being completed. I am unimpressed by the defendant's claim that this last option was impractical because the heat would have weakened the links of the chain.
The second defendant placed the plaintiff at risk to avoid damage to its concrete floor. It was able to devise a safer system of work. It was negligent in the system adopted and is liable for injury suffered by the plaintiff.
I now turn to the medical evidence.
Medical evidence
Following the motor vehicle accident the plaintiff first saw Dr Tan, his general practitioner, on 23 June 1995. On 30 June Dr Tan noted that the plaintiff wore a cervical collar issued from the hospital and complained of cervical pain and headache. Dr Tan recorded that on examination he had some pieces of glass on the left upper eyelid, but I understand Dr Tan did not observe this himself: he learnt this from the plaintiff. In September 1996, Dr Silbert conducted an ultrasound of the orbit for foreign bodies and this showed none. Dr Tan could find no fault with his eyes.
Thereafter the plaintiff attended upon Dr Tan regularly to 29 January 1998 - that is prior to the work accident on 2 February 1998.
Although Dr Tan made reference to symptoms in the right wrist this was first mentioned to Dr Tan on 22 January 1996 and then Dr Tan concluded that this was a long standing hamate bony spur which the plaintiff said had been traumatised some five years earlier - an old injury. This was treated with Panadeine Forte.
Following the motor vehicle accident the plaintiff had a painful neck and shoulder. Symptoms in these areas continued but did not prevent the plaintiff obtaining employment as a mechanic with Toscana WA Pty Ltd for 12 weeks from April 1997 and from obtaining work and working as a boilermaker/welder with the second defendant from June 1997. It is plain that the plaintiff worked satisfactorily in that capacity until he was put off work by Dr Gillett following arthroscopy on 28 April 1998.
On 2 June 1998 Dr Gillett noted significant wasting in the quadriceps and he was concerned at the degree of instability in the left knee which was partially unstable. The first mention of back pain after the work accident was to Dr Tan on 26 June 1998 when the latter noted increasing cervical and lumbar pain and prescribed Panadeine Forte.
On 29 June the plaintiff complained to Dr Tan of cervical pain and on 7 July lumbar sacral and left knee pain. The plaintiff told Dr Gillett of back pain for the first time when he saw the latter on 26 July 1998: the plaintiff attributed the onset of that pain "to the fall when he knocked his left knee".
Dr Tan has no note of depression before 3 September 1998 and on that date he prescribed Zoloft which may or may not be a treatment for depression.
Upon examination by Dr Tan on 15 January 2001 he noted the plaintiff to be in:
"obvious pain and limping heavily on an outstretched left leg. He was not able to stand up straight and flexion of his back was very limited and his finger tips could only come to the level of his knee. Lateral flexion of the back was limited in both directions. There was approximately 1cm loss in circumference of his left thigh muscle compared with the right. Power of the left big toe was greatly diminished and the ankle jerk was absent on the left side. Straight leg raising on the left side was limited to approximately 15 degrees and he was in pain trying to do it. Straight leg raising on the right side was up to about 40 degrees and again he was experiencing pain in his lumbar sacral region. There was overall tenderness along the lumbar sacral region on palpation … Throughout the whole examination of his left knee the patient held his left lower leg everted and abducted. Movement of the left lower leg is accompanied by pain at all times. There was no bruising or fluid within the left knee joint but the overall knee movement was one of a 'laxed' joint. With the knee flexed at 90 degrees I was able to push it back and forth with ease and again with the knee flexed at about 30 degrees there was a lot of lateral movement."
Dr Tan then was shown the video taken of the plaintiff and he observed that the plaintiff appeared to have a very good range of neck flexion movements and with regard to both shoulders he was able to work and move his shoulders without any problems. Dr Tan was of the opinion that the plaintiff's problems with his neck and shoulder are very minimal and he is capable of using them without much restriction. "Consequently his disability is not as large as stated in my correspondence." Dr Tan noted that the plaintiff appeared to be able to walk in a straight line and walk properly -
"Previously he was limping very badly with outstretched everted left lower leg. This appears not to be so as supported by the surveillance video. However, I do detect a certain degree of limping on the left lower leg.
He was able to put his left leg on the letter box and again he was able to squat down … at Kmart store in Mirrabooka Square. More importantly he was able to push himself up and stand up properly and walk away."
Dr Tan said that though he may have some pain in the left knee "his signs and symptoms were excessively exaggerated to me in my room". He did not appear to have trouble getting in and out of his car as one would have expected with acute back pain. There was great disparity between the plaintiff's clinical signs and what was seen on the video tape. His residual disability was not as severe as originally thought and Dr Tan suggested further examination by one of the specialists to clarify this situation.
Most of the attendances concerned cervical and right shoulder pain for which physiotherapy was prescribed. He also had acupuncture with stimulation treatment.
Headaches persisted and the last complaint of headaches to Dr Tan before February 1998 was 8 December 1997.
Sleep disturbance was mentioned periodically and sleeping tablets were prescribed.
On 24 July 1996 Mr George Wong, a neurosurgeon, saw the plaintiff concerning neck pain, headaches and shoulder pain and noted that physiotherapy did not really help. Mr Wong recorded that the plaintiff's pain was mainly in the neck, suprascapular region and occipital front headache. The plaintiff complained that it would sometimes be so bad that he would take a few tablets, then tie a belt around his forehead and he actually lost balance. Upon examination on 7 August 1996 the plaintiff had difficulty looking upwards because he said if he looked upwards he would have pain in his head.
No abnormality was revealed neurologically in cranial nerve examination and examination of the upper and lower limbs. There was a minor deformity of the anterior aspect of C5 but otherwise no significant abnormality.
Mr Wong diagnosed a soft tissue injury with possible functional factors involved. He felt there was nothing very much he could offer the plaintiff and considered that a pain clinic specialist should see him.
The plaintiff's solicitors referred the plaintiff to Professor Taylor, a specialist in pain management and spinal medicine, by a letter dated 3 February 1998 requesting a report. Professor Taylor examined the plaintiff on 31 March 1998 and found widespread tenderness in the neck. There were no complaints of knee or low back symptoms. Nor was there mention of the incident on 2 February 1998.
On 28 May 1998 Professor Taylor saw the plaintiff following a bone scan which confirmed "increased activity which is most marked on the right at the C6/7 facet joint, with some changes on the right at the C2/3 facet and also on the left side at C3/4 and C7/T1". Professor Taylor said that the plaintiff had had multi‑level injuries and in the past had responded to facet blocks, he recommended facet joint injection at C6/7 on the right to assess his response and decide whether radio frequency or rhizotomy would be appropriate. He prepared a pain diagram showing pain to the back of his neck, head and forehead with pain down the right arm - numbness and pins and needles. There was again no report of low back or knee pain.
Concerning the incident on 2 February 1998 the plaintiff first saw a medical practitioner, namely Dr Gillett, on 26 February 1998. The plaintiff gave a history that about two weeks earlier he was cutting a large piece of pipe when it fell and rolled striking him on the lateral aspect of the left knee. The plaintiff continued working but noticed a gradual increase in swelling and pain in the left knee to the extent that he was "now unable to squat". On examination there was a "mild defusion in the left knee with tenderness over the lateral aspect on springing the knee medially". There was tenderness over the insertion of the lateral collateral ligament into the tibia and Dr Gillett considered the plaintiff sustained lateral collateral ligament strain or tear. He recommended a supportive bandage, that the plaintiff commence physiotherapy and modify his duties at work.
By 12 March 1998 the swelling in the left knee had substantially reduced to the point where the plaintiff could commence normal duties.
On 28 April 1998 an MRI identified a posterior cruciate ligament tear with a lateral/collateral ligament tear. He was sent to Mr Tiller, an orthopaedic surgeon, for arthroscopic revision and Dr Gillett at that time regarded this as a "substantial injury". The plaintiff was unfit for work and Dr Gillett recommended an intensive physical rehabilitation programme at Brian Edwardes & Associates.
An arthroscopy was performed on 28 April by Mr Tiller, an orthopaedic surgeon: Mr Tiller inspected all the structures within the knee and undertook a minor amount of surgery to correct a defect in the lateral aspect - a chondroplasty, or smoothing the surface of the knee joint and drilling a small number of holes to promote cartilage growth so that the new cartilage would grow back, smooth over the defect and give rise to a greater degree of function.
On 25 January 2001 Dr Gillett reviewed the plaintiff and considered that the circumstances of the incident on 2 February 1998 were entirely consistent with the cause of the injury to the knee which he regarded as a soft tissue injury. There was, however, on examination, some obvious discrepancy between the plaintiff's symptoms and presentation on the clinical finding by reference to the plaintiff's back and Dr Gillett could not identify any substantial objective evidence of back pathology. MRI undertaken in August 1998 was consistent with age related changes. There was moreover then no evidence of wasting in the left leg. In Dr Gillett's opinion the plaintiff had made a substantial recovery from his work related accident, the recovery being partial due to the fact that he had clinical instability in the knee and radiological evidence of posterior cruciate damage.
Upon that examination the plaintiff had a capacity for full‑time altered duties with restrictions on confined space work, prolonged kneeling and squatting, by reference to the knee. He was capable of working as a light process worker, storeman, clerk, courier driver and taxi driver.
There was no discrepancy in ankle jerks. The clinical instability in the left knee was regarded as mild.
Dr Gillett was then shown surveillance film taken of the plaintiff in June and November 1998, October 1999 and October 2000. Having viewed this video tape, which ran for nearly one hour, Dr Gillett considered that the plaintiff was exaggerating his complaints and symptoms when seen by him, the plaintiff had made a substantial recovery from his injury and had a very good degree of function in the left knee. The plaintiff had sufficiently recovered to carry out the vast bulk of his pre‑accident duties as boilermaker/welder - duties with which Dr Gillett was familiar for he had seen these duties performed with the second defendant and in many other places. In Dr Gillett's experience, moreover, he has seen in the case of many boilermakers, the ability to modify their work and their working environment such that they can alter their posture and it causes no major difficulties. Welding is a lot easier because invariably one can adopt a certain welding position such as bench height, using mechanical aids to accommodate or alter the height of the material to be welded.
Prolonged kneeling and working in confined spaces would be difficult if that constituted the bulk of a day's work but in Dr Gillett's opinion that would be very unusual. He emphasised that the cruciate had not been ruptured but had been stretched and he could pull weights of 20kg in a rhythmical sustained activity over a relatively short space. Carrying heavy weights, if part of overall activities, would not be a major problem. It is very unusual in large construction sites to have huge amounts of uneven terrain. The plaintiff would be able to accommodate the vast bulk of boilermaking/welding activities at the second defendant's site, the north west shelf and the north west shelf gas complex. Should the plaintiff increase his activity level as a boilermaker/welder he may notice no difference in his knee if he is not overstressing his anterior cruciate ligament but if he had a sudden traumatic stretch of that ligament "he may well notice some discomfort".
Upon viewing the video Dr Gillett could note no significant problem in the plaintiff's neck movements.
Based on the surveillance footage Dr Gillett assessed the level of permanent disability in the left leg at or above the knee to be 5 per cent.
Professor Taylor was shown the video film and remarked "there was nothing on the video which directly contradicted or went against my findings in the consulting room". He had a full range of movement in the lumbar spine. He had marked restriction of neck extension and otherwise very mild restrictions. He had overall a 25 per cent loss of function.
Professor Peter Hollingworth, as associate professor in occupational medicine at the School of Public Health at Curtin University, saw the plaintiff first in May 1997.
On examination the plaintiff showed a very good range of rotation to the right and left spontaneously, using his arms freely "and can demonstrate quite freely where the pain goes from his neck down into the shoulders and there is no sign of discomfort as he does this". On formal examination there was good range of movement, slightly decreased in flexion and he reported pain mainly on the right side of the neck at the end of the range of movement and more so with movements to the right than to the left. He said he could flex to the lower tibia but there was pain with extension. Lateral flexion gave pain basically on the right.
Professor Hollingworth then took the view that there were psychological factors involved and the motor vehicle accident must have been a fairly shattering experience, having migrated to a country in which he did not speak English and having three weeks after his arrival been involved in such an accident. His symptom presentation was exaggerated but not in terms of deliberate exaggeration for any particular ends but rather an over‑reaction to his pain and the fact that a fit young man has recovered completely in two years. He did not think that further physiotherapy was going to help. The plaintiff would ultimately recover without any residual impairment and without any residual restriction in his choice of job opportunities.
Professor Hollingworth saw the plaintiff on 27 October 1998 attending, at the suggestion of Professor Hollingworth, with an interpreter which the plaintiff resented. The plaintiff complained that he was getting much worse with the pain in the head, neck and shoulder and could not work. He said he was unable to work because of his neck pain - only upon further enquiry did he speak of a knee injury.
There was no examination of the knee on that occasion but Professor Hollingworth concluded there was no physical abnormality which would prevent the plaintiff from returning to his pre‑accident employment as a boilermaker/welder nor from engaging in many other forms of employment such as storeman, sales assistant or courier driver.
Upon watching the plaintiff whilst taking a history the latter showed normal head and neck rotation but virtually no movement on examination particularly to the right, when asked to look up to the ceiling he would not attempt extension of his neck complaining that he was getting a headache over the left eye. There was decreased flexion of the neck.
The plaintiff was apparently resentful of the fact that no doctors had diagnosed fractures in his hand and it was still painful. There was no fracture - there was a spur on the hamate.
Professor Hollingworth found it difficult to determine whether following the knee injury the plaintiff had an increase in his low back problems.
When examined by Professor Hollingworth the latter saw no reason why the plaintiff should not be back to work as a boilermaker on a full‑time basis, having regard to the injuries sustained in the motor vehicle accident. He considered the plaintiff should have psychological treatment.
In January 2001 Professor Hollingworth again saw the plaintiff and viewed the surveillance film. On examination the plaintiff sat for 45 minutes in no apparent discomfort but then "started squirming about, holding the right side of his neck and leaning to one side, with lots of grimacing and slouching when he was sitting on the chair". He said he could not fully rotate his head and neck to the right because of pain; when asked to look up to the ceiling he said he had to close his eyes because if they were open it hurt his eye. He was asked to put his right and left feet on a chair and Professor Hollingworth has detailed the plaintiff's responses: he would not put his right foot on the chair for fear that he may fall.
Straight leg raising was inconsistent with sitting on the edge of the couch; knee jerks were equal but the left ankle jerk was probably slightly less than the right - this was of no clinical concern.
Professor Hollingworth detailed the inconsistencies between clinical examination and what was seen on the surveillance film. So far as the knee was concerned he could find no abnormality.
Professor Hollingworth viewed the plaintiff as an actor rather than a person with genuine psychiatric problems but emphasised that he was not a psychiatrist. Presentation viewed with the surveillance film could lead Professor Hollingworth to no conclusion other than that the plaintiff was exaggerating his symptoms.
He had made a full recovery from the soft tissue injury resulting from the motor vehicle accident.
Mr Edibam, an orthopaedic surgeon, saw the plaintiff on 5 February 1999, 14 January 2000 and 1 February 2001; he also viewed surveillance video taken of the plaintiff.
Although he commented on the left knee and left ankle jerk being depressed, in the absence of other findings there was no significance to this. The plaintiff had normal muscle power and normal stability of his joints.
Examination of the plaintiff was difficult. He found, however, there was a 5 per cent disability, or minor loss of knee function - a degree of laxity which would not interfere with work activity although it may interfere with first grade sport. It is only when one is running fast, stopping suddenly or twisting severely that the knee will present a problem. The knee is not weight bearing. There was no lateral instability.
Having seen the surveillance video Mr Edibam was not surprised that the plaintiff was able to undertake those activities.
In the video film Mr Edibam noted that the plaintiff "moved normally, in fact, he was agile and showing normal function in his knees and lumbar spine as well as in his cervical spine which he moved with ease without showing any evidence of being in pain". This confirmed his clinical impression that there was no evidence of any abnormality either in the plaintiff's lumbar spine or in his knees. He was able to bear weight on the left knee alone for a prolonged period of time which would suggest he had no ongoing problems with that knee joint.
Nevertheless, because of the defect in the lumbar spine, Mr Edibam, as a precaution would not recommend such activity as working and digging holes in the ground.
Dr Bowles, an occupational physician, saw the plaintiff on 2 August 1999. There were no neurological abnormalities in the lower limbs. The left knee showed no evidence of swelling. There was no significant difference between the thigh circumference on either side, he had very marked tenderness in the left and right knees and there seemed to be some slight ligamentous laxity in the collateral ligaments but examination was limited by exclamations of pain and reluctance to continue with testing. There was obviously a discrepancy between the plaintiff's symptoms, presentation and the clinical findings and Dr Bowles concluded that there was a strong functional or non‑organic component to the examination.
There was non‑specific low back pain.
No further investigation or surgical intervention was warranted. The plaintiff then had a work capacity as a boilermaker/welder on a full‑time basis and he could undertake many other forms of employment.
There were a number of psycho‑social factors in the plaintiff's history along with the non‑organic component to his examination but Dr Bowles did not believe that the accident of 2 February 1998 was a contributing factor.
Having seen the surveillance film in January 2001 Dr Bowles, having detailed what he saw on the film, concluded that the plaintiff had made a total recovery. The video surveillance showed no functional impairment in his activities. It was Dr Bowles' opinion on 2 August 1999 he was fit to carry out his pre‑accident employment as a boilermaker/welder. He would limit lifting to 15 - 20kg and change posture from time to time. The plaintiff had previously exaggerated his complaints and symptoms.
In the vast majority of cases back pain is benign - one needs to remain active. Dr Bowles cautioned against "over‑medicalising".
The plaintiff was invited to take part in rehabilitation programmes from June 1998. He was assessed by Mr Cartmel, a rehabilitation counsellor and psychologist, who took a history that the plaintiff was traumatised by his experience of the Civil War in Bosnia - he talked about his experiences viewing such things as his brother being shot (which the plaintiff denied in evidence) and both his parents being killed during the war - which again was denied by the plaintiff. Mr Cartmel questioned whether the plaintiff suffered from post‑traumatic stress resulting from the war events but would defer to a specialist in that area. I accept Mr Cartmel's evidence of the history given by the plaintiff.
A rehabilitation counsellor, Helene Drobiski, assessed the plaintiff in July 1998 as a man who had superior intelligence, good arithmetic skills, good reading skills, good command of the spoken English language, friendly and approachable, good communication and interpersonal skills, ability to drive without discomfort, a number of skills and qualifications in the technical field of mechanical engineering. She recommended a work trial in occupations such as truck driver, sales representative or store person.
In October 1998 Ms Vanessa Ortiz, a rehabilitation counsellor, noted that the plaintiff was being treated with physiotherapy as well as a supervised hydrotherapy programme and some gymnasium based exercises but that there had been no improvement with his back following that treatment.
She endeavoured to place the plaintiff at Coventry's but the plaintiff was not enthusiastic with this plan. The plaintiff "again and again has told me of his educational background and the management type jobs he had in his country. As well as claiming to be a very quick learner, proof of this being that he pretty much taught himself how to be a boilermaker and further claims that after a few weeks he was the best in the whole company. He also claims that he can find employment very quickly in stores or in cleaning and yet up to now he has not demonstrated any motivation at all to prove that all of this is true". The plaintiff said that he wanted someone to pay for his injury.
The work the plaintiff was to carry out at Coventry's was in a stores capacity - looking on shelves for various items requested by customers. The plaintiff was not enthusiastic. He wanted work more along the lines of his level of education - stores work of that nature would be demeaning. It was intended that the plaintiff would attend this placement for three hours a day, five days a week. The plaintiff in his evidence denied saying that he was not keen and denied that he believed the duties were demeaning, that his back symptoms would not allow him to cope with the duties, and he did not think his English was good enough to assist the customers. At all events he contacted Ms Ortiz the day following the placement so that he would not return to Coventry's.
I accept the evidence of Ms Ortiz concerning the various remarks by the plaintiff.
On 6 June 2000 the plaintiff was placed with the Perth Candy Factory in Osborne Park. He worked three to four hours a day for three consecutive days but complained that he was mainly cleaning buckets and sweeping. In evidence he plainly objected to this work because he was working with disabled people and found that cleaning floors under tables was physically difficult.
The medical evidence is compelling that the plaintiff presented to various medical practitioners with symptoms which were inconsistent with any pathology in the neck, back and knee.
The surveillance films taken from June 1998 to October 2000 have confirmed the views held by the medical practitioners that there was marked inconsistency between symptoms presented and clinical signs. Whether this be called abnormal illness behaviour or otherwise the question to be determined is whether the plaintiff is indeed disabled on account of any psychiatric condition or depression or whether the plaintiff is to be found to have consciously exaggerated his condition.
The finding of this fact depends upon the acceptance or otherwise of psychiatric opinion - that of Dr Skerritt or that of Dr Terace.
Dr Skerritt first saw the plaintiff in September 2000 and explained that much of the depressive symptomatology was "straight forward enough with suicidal thoughts, sleep disturbance, low moods etc. This is a common complication of chronic pain". He treated the plaintiff by prescribing an anti‑depressant.
Dr Skerritt did not use an interpreter during his consultations.
In the history he obtained Dr Skerritt was somewhat dismissive about the plaintiff's war service which the plaintiff said was "not so bad". His war service he said consisted mostly of distributing food with only very brief periods on the fighting front. "He emphasised that he was not at all troubled by memories of that time and emphasised the medical and psychological tests which were performed before his immigration. He is a religious Muslim and attends a mosque regularly, although finds difficulty praying on bended knees". I mention here that the plaintiff was asked about praying on his knees and said that he was not of the persuasion that required praying in that manner.
Dr Skerritt did not think that the accident of 15 June 1995 was making a significant contribution to his psychiatric condition "although it is possible that it rendered him more vulnerable to the onset of psychiatric symptoms from the subsequent injury". The accident of 2 February 1998 provided the main contributor to his condition. Dr Skerritt did not see the evidence of the history of his war service or other factors contributing significantly to his current psychiatric condition.
Asked whether there was any evidence of secondary gain or calculated attempt to maximise his compensation claim or deliberately exaggerate his condition Dr Skerritt replied that it was "virtually impossible to demonstrate the person's position on the conscious/unconscious dichotomy and I am not inclined to think that he is being deliberate in the way he expresses his illness which appears exaggerated to those of a cultural disparity from Mr Maketic".
Dr Skerritt said that there seemed to be abnormality of his illness behaviour with the exhibition of behaviour that would normally be consistent with illness, out of proportion to physical pathology which can be demonstrated, although there is indeed physical pathology. He thought that he may be able to relieve something like 50 per cent of the plaintiff's symptoms with thorough treatment.
From a psychiatric point of view the plaintiff was not capable of working and there was probably a little less than 50 per cent prognosis of returning to work in the future.
In the course of the consultation the plaintiff told Dr Skerritt that the knee was slowly improving but it was still not right. The onset of depressive symptoms started some seven or eight months after the arthroscopy and the plaintiff described this as "a black thing comes in my head" and he mentioned thoughts of killing himself - "my life is gone you know". He mentioned things that he could not do which he used to enjoy before, such as sports. He said he avoided his friends for about a year thinking that they were saying "look at this man, he can't do anything". His moods were worse in the morning. Sleep was disturbed with difficulty getting off to sleep as he thought about his future. He would waken through the night with such thoughts as that he might be in a wheelchair. He described occasional scared feelings when driving but not in such situations as crowds and social occasions.
In the course of his evidence the plaintiff did not speak of the thoughts of suicide. He did not say that his friends were contemplating him in the manner he apparently told Dr Skerritt. Nor did he speak of being scared while driving.
Upon Dr Skerritt reviewing the video film, he was asked a number of questions to which he gave these answers:
"(a)Was the plaintiff exaggerating his complaints and symptoms?---No.
(b)Had the plaintiff made a recovery and if so was such recovery total or partial? Give your reasons.---I do not think that the video throws any light on this question. Even the longest is short in comparison with a person's ability to work 40 hours a week. Videos show nothing of his mental state and inner symptoms.
(c)Is the plaintiff fit to carry out his pre‑accident employment as a boilermaker/welder?---The most recent video of choosing a fishing rod does not, in logic, allow such a conclusion to be made although I will be careful not to go beyond my area of expertise on the matter.
(d)Is the plaintiff fit to carry out alternative employment and duties as a light process worker etc?---See (c) above. The psychiatric symptoms which have been the area of my treatment of Mr Maketic do not discriminate between different occupations as described."
Those answers are not particularly informative but in the course of his evidence Dr Skerritt made a number of observations. Given the plaintiff's ethnic background he said it was rather an awful sensation to find oneself in the presence of a doctor who does not seem to appreciate the degree of suffering that the person believes that he or she has and it is in a way no more than a natural response to try to make sure that the message gets across.
"One could say that the language of communication between doctors and patients is very much around symptoms in any case and if language skills are poor as well as that ethnic disparity then it is very likely, and again I think not much more than commonsense that the demonstration of the illness might become more demonstrative than it might have been otherwise and unfortunately backfires on the person quite often by the interpretation of the doctor who sees the patient."
In the way of physical symptoms Dr Skerritt explained that the plaintiff told him of soreness in his knee and some spinal symptoms which were possibly secondary to that.
Depression is a very frequent complication of chronic pain. Dr Skerritt was presented with three traumatic episodes in the plaintiff's life: the war, the motor vehicle accident and the industrial accident. The war was not really a terrible experience for him and he experienced no symptoms at all. The motor vehicle accident resulted in some symptoms of a relatively mild nature which had resolved. He understood that it had taken the plaintiff two years for him to get back to work which gave rise to the suspicion that there was something going on from the motor vehicle accident but the plaintiff's condition had resolved sufficiently for a work rehabilitation of eight months duration. The relatively mild depressive symptoms after the motor vehicle accident were an indication of the diathesis that he was going through in his life but of which he was unaware. Whatever physical symptoms he had from that accident did not stop him from performing heavy work for eight months.
Significantly when asked if the plaintiff had any overt signs of invalidity Dr Skerritt commented:
"There wasn't anything very overt, perhaps a slight limp. I can't remember exactly. It was enough for - one guide I have in my office is I offer people a straight chair with arms that is easier to get in and out of and an armchair. He chose the straight chair, so that's a bit of illness behaviour that I did record to the extent of making a note to offer him that chair in future."
Dr Skerritt did not make detailed observations about his limp.
"Abnormal illness behaviour" means a disproportion between the physical pathology and the behaviour that is demonstrated and it does not go further than that. Malingering, where the behaviour is consciously determined for an identifiable gain, is simply one of a number of varieties of abnormal illness behaviour. In the absence of a physical examination Dr Skerritt would be very cautious of identifying abnormal illness behaviour in a psychiatric context "and one really needs to examine all the various opinions and investigations to establish that there is that disproportion. I would certainly not make that designation on - I would rarely make that designation on observation alone". It would be improper for a psychiatrist alone in most cases to establish that the illness behaviour is abnormal.
When asked whether he would expect a person suffering from unconscious abnormal illness behaviour to behave in a fairly consistent manner Dr Skerritt replied "No, I would expect the opposite to that because if there are many different factors which are fluctuating from time to time that are influencing behaviour then you would expect inconsistency in behaviour". He agreed, however, that if there were an extreme difference then one would consider that there were conscious factors involved. Dr Skerritt did not see a sufficient difference between the symptoms presented to him and those upon the video tape to sustain the suggestion that the plaintiff was malingering. "In fact, I thought the behaviour that was demonstrated on the films didn't seem enormously abnormal in any case."
Dr Skerritt said that the depressive disorder which he diagnosed in the plaintiff was not severe. There were symptoms of the depression by themselves which would make work difficult: problems of concentration and problems with swings of mood and irritability. He was incapable of working "and work trials proved that. I can't say exactly what happened, but that seems to be consistent with my observations of him".
Dr Skerritt's role is to get people better, "and if they want to mislead me then they take the consequences of it. It's not a very common situation in my experience". If the plaintiff were found to be untruthful as a witness that would be a factor which would be taken into account. "I have certainly gone on treating people where I've known that they weren't telling the truth because there are still people who require their behaviour to be changed".
When asked whether his confidence in his rehabilitation or treatment would have an impact Dr Skerritt replied:
"It depends very much on the level of stress that is put on a person as to how they behave and the depressive disorder is something that is lying there underneath and may now show a great deal in circumstances where there isn't a particular stress. The most stressful situations, of course, are in the home and ordinary domestic relations are very difficult for people who suffer acute depression."
Dr Terace saw the plaintiff on 1 June 2000 with a professional interpreter.
The plaintiff presented with complaints of headaches despite corrective surgery to his eyes and after 1998 low back pain and left knee pain which were claimed to be aggravated by walking and moving and partially relieved by analgesia.
The plaintiff walked with a "disturbed gait emphasising discomfort in his knee" which appeared to be compatible with such an injury. The disability was to a marked degree. The plaintiff rose from the chair on several occasions suggesting the presence of back pain.
Abnormal illness behaviour is present if two criteria are met: a preponderance of medical evidence by the various specialists in the area of injury to show that complaints exceed the known physical findings and overwhelming behaviour at interview that a psychiatrist would view as inconsistent with those complaints. The diagnosis of abnormal illness behaviour in the plaintiff's case was concluded by Dr Terace on the basis of the preponderance of medical evidence handed to him: for example, Dr Wong's note that the plaintiff was intensely focused on his array of residual symptoms, and displayed inconsistency in his general movements and abilities during the examination; Dr Bowles' conclusion that the plaintiff had not sustained any permanent loss of function in relation to both back and knee and had no permanent disability as a result of the accident of 2 February 1998; Mr Edibam did not feel that the ongoing complaints were in any way related to whatever injury that might have occurred in February 1998; Professor Hollingworth thought the plaintiff's genuineness and reliability were to be called in to question.
Dr Terace concluded on his findings at that interview that the plaintiff did have a disorder of mood and a predominant contributor would be constitutional because that is a general finding about most psychiatric disorders: the significant events of his participation in the civil uprising in Bosnia over a four year period, the motor vehicle accident of June 1995 and the employment accident of February 1998. Dr Terace regarded the mood disorder or depression as moderately severe and at least partially disabling on the evidence he had and on purely psychiatric grounds he would not consider the plaintiff to have been totally disabled. For that he would have to consider both the psychological and physical factors. The physical factors were outside his area of expertise.
Upon being presented with the video surveillance he took the view that there were inconsistencies with his objective findings at interview and the plaintiff's subjective complaints to him. The plaintiff in the video tape was relatively active and was capable of activities which had otherwise been denied. The plaintiff had described himself as being severely depressed whereas he was seen on video tape to engage in social interaction with at least one other person; he had claimed to Dr Terace not to be able to bend his knee in any fashion and yet appeared to be bending both knees very comfortably in a supermarket in October 1999 - six months prior to the consultation which allowed for a longer period of recovery.
Dr Terace has no doubt that the plaintiff meets the criteria for abnormal illness behaviour because all that means is a disparity between the plaintiff's complaints and the exact physical findings. The general consensus of psychiatrists is that about 90 per cent of such cases are unconsciously generated or, in other words, genuinely perceived by the patient. Regrettably, Dr Terace said, in 10 per cent of cases the evidence suggests that there is some conscious exaggeration supporting a probability of fabrication. Dr Terace said he could not be conclusive about that because that was a matter that depended upon truth rather than a medical opinion but the evidence presented to Dr Terace led him to conclude that there was a higher probability of fabrication than he had initially considered when he assumed a reliability of the plaintiff at interview. This led to the conclusion of conscious exaggeration of the physical complaint. The video tape increased the probability of a diagnosis of malingering or factitious disorder, meaning that the plaintiff consciously exaggerated either physical or psychological symptoms with a view to an overt gain which is commonly financial.
Dr Terace disagreed with Dr Skerritt's conclusions. Dr Terace prefers to believe that people are honest and his patients are reliable but there are circumstances where suspicion is raised. During consultation the plaintiff denied being able to bend his knees at all. The plaintiff's capacity to bend his knees upon the video film was not transient but was sustained - "it was without even the most minor of discomforts". There was a marked disparity in a range of activities and therefore Dr Terace was forced to consider that whilst he prefers not to believe he can be deceived perhaps he can be deceived. He was very surprised to see the plaintiff so active in a variety of ways because his descriptions were very disparate from that.
Dr Terace's opinion was, he said, not limited to the psychological or psychiatric condition as at a particular day: the knowledge, training and experience of a psychiatrist permits a psychiatrist not only to conduct an examination of factors both objective and subjective at a certain time but also retrospectively and prospectively and make conclusions about a person's physical and psychological complaints over time and not just at the time of interview.
Dr Tan made reference to overdose by drugs and in the morning the plaintiff was "upset" he took further drugs. Dr Terace explained that a true major depression has less fluctuation than the plaintiff in this case. If a person made a self‑harm gesture on one morning it would not be customary to see a substantial relief that evening, although there is a phenomenon where one can be worse in the morning than in the evening.
The difference in history given by the plaintiff to Mr Cartmel and to Dr Skerritt also raises suspicion.
Chronic pain patients always have an emphasis on pain and on physical disability rather than psychological factors. The emphasis is always on pain and the absence of depressive symptoms is not relevant to their expectations.
Weight loss may be a factor to take into consideration - fluctuations of weight are common in the community for a variety of reasons and one would need to exclude a number of illnesses as a cause. Weight loss on its own does not support a diagnosis of depressive disturbance or even a diagnosis of other physical disorder. Weight loss of 10 or 15kg would not suggest depression.
Findings of fact concerning the injuries
The plaintiff was a most unsatisfactory witness and I am unable to accept his evidence. He was evasive on many occasions and his evidence was on other occasions quite improbable. I give some bases for these findings.
(a)His evidence of the part he took in the Bosnian war: he was reluctant to answer questions directly. The history he gave to Mr Cartmel, which as I have said I accept, was denied by the plaintiff.
(b)He told Dr Hollingworth he had been taking Bosnian medicine for arthritis and lumbago - his explanation that he called his brother, told him he had had an accident and asked him to send some Brufen "because I can't find Brufen here" is unacceptable.
(c)His evidence that he had difficulty driving a manual car because of his leg and back is inconsistent with the sale of the automatic car some four months ago and the purchase of a manually operated car - which is in his name but his wife's car. It is a car he was filmed driving.
(d)His evidence of the applications for 150 jobs after the motor vehicle accident was unconvincing.
(e)His explanation for not telling Professor Taylor of the knee injury on 31 March 1998 - at page 51 of the transcript - does not make sense. He then, untruthfully, I find, said he did tell Professor Taylor of the knee and back injury on that date.
(f)His evidence of his inability to kick a ball and then that he had tried to do so on a soccer pitch was quite unsatisfactory.
(g)His vague answers that he last played basketball, tennis and table tennis 5 to 10 years ago does not support his claim that he can no longer participate in such sports. He then amended this in part to say he tried to play tennis in Australia but could not remember when or where. He played soccer after the motor vehicle accident but he was thoroughly argumentative when questioned about this.
(h)His presentation of symptoms to all the doctors save perhaps to Dr Skerritt and Professor Taylor was entirely inconsistent with the video film. Moreover his evidence of what he was seen to do on film was argumentative and in the case of being questioned about squatting he finally said he did but the film did not show this. He was also quite unwilling to make any concession of being able to bend his knee - though he was clearly shown to have done so. He viewed the film before the trial had had not done so when seen by the various doctors.
Following the motor vehicle accident I find the plaintiff was incapacitated for work for a very short period - though there is no medical evidence of incapacity. I cannot assess that incapacity in mathematical terms.
The plaintiff suffered mild to moderate symptoms and certainly by April 1997 he had substantially recovered.
His leaving Toscana's employment had nothing to do with his symptoms.
The injury at work on 2 February 1998 was not a severe blow to the knee. The plaintiff was able to continue working but the condition deteriorated to the extent that he required the arthroscopy.
He continued to have instability in the left knee and wasting of the muscles at least to July 1998 (Dr Gillett's review on 6 July 1998). Certainly by February 1999 (Mr Edibam's consultation) he had recovered to the extent he could return to full employment.
I find he was incapacitated for work until August 1998. The plaintiff could certainly then work as storeman or courier driver. By now the plaintiff is able, both by reference to the knee, neck and back, to work as a boilermaker/welder.
The knee injury has substantially resolved. He now has a 5 per cent disability in the knee - which will become symptomatic only upon fast turning movements. I accept Mr Edibam's evidence.
The plaintiff did not fall back upon a table or injure his back or neck on 2 February 1998. No report was made of such an injury until months later. Had he suffered that injury it would have been symptomatic and reported earlier. He would have told Dr Gillett or Professor Taylor if he had suffered the injury.
The plaintiff untruthfully presented his symptoms to many doctors and rehabilitation specialists. He did so, not for any psychiatric reason, but fraudulently to enhance his claim. In reaching this finding I prefer the evidence of Dr Terace to that of Dr Skerritt. I found Dr Terace an objective and fair witness who, unlike Dr Skerritt, noted grave inconsistencies between presentation of symptoms and the activity seen on film. Dr Skerritt appears to have accepted that the plaintiff suffered from chronic pain and had significant physical pathology which is not borne out by the evidence.
There is a question of interpretation with which I now deal.
Section 145E of the Workers' Compensation & Rehabilitation Act 1981
The Medical Assessment Panel convened under Part VII of the Workers' Compensation & Assessment Act 1981 ("the Act") determined on 13 March 2000 that the plaintiff's "ongoing disabilities in his left knee and low back … are related to the February 1998 injury at work". The panel assessed him as unsuitable to return to his pre‑injury work as a boilermaker/welder in a part‑time or full‑time capacity. His disabilities should not preclude him from working full‑time in a suitable alternative occupation, with some restrictions.
It is submitted that in terms of s 145E(5) of the Act that "determination, as varied, is final and binding on the worker and his employer and on any Court or Tribunal hearing the matter in which any such determination is relevant …" and therefore I am bound by that determination.
I reject that submission.
A question is referred to a medical panel by a conciliation officer where there is a medical issue arising out of a dispute: this is plain from the provisions of Part IIIA and particularly s 84N, s 84R, s 84ZH and s 84ZR. Questions are referred to the medical panel "only if … one of the parties wishes the proceedings to continue".
The "proceedings" are those contemplated by s 84B of the Act.
The panel then must act "speedily and informally … without regard to technicalities or legal forms and is not bound by rules of practice nor evidence: s 145D(1). The panel may require the worker to attend before the panel: s 145D(2).
It is quite clear from Part VII of the Act that the proceedings before a medical panel and its determinations have no place whatever in proceedings before this Court.
The determination of the medical panel is not "relevant" in this hearing.
I turn now to the assessment of damages.
Damages
A. The motor vehicle accident
General damages
The plaintiff suffered a mild to moderate soft tissue injury to his neck.
The pieces of glass were removed from his eyelid and he now has no further symptoms from this incident - indeed within days or weeks the symptoms would have disappeared.
He has had some mild symptoms over the last few years.
The plaintiff is not precluded from working as a boilermaker or welder. Nor has the injury interfered significantly with his recreational and domestic activities.
I assess the injury as 15 per cent of a most extreme case and award the plaintiff $33,750 less amount B of $11,000 - an award under this head of $22,750.
Past and future lost income
There is no reliable evidence of the extent of incapacity for work following the motor vehicle accident but I shall assume that some weeks were required to recover full capacity. The plaintiff had recently arrived in Australia and there is no certainty he would immediately have found work.
I assess for past loss of income a global amount of $5,000 and I make no separate award for interest and lost superannuation. There is no future loss of income resulting from the motor vehicle accident.
Medical and pharmaceutical expenses - past and future
I make no award under this head.
Summary of awards
General damages $22,750.00
Past loss of income $ 5,000.00
Total $27,750.00
B. The work accident
I shall assess the damages, though in the result none is recoverable for the reasons I shall give.
General damages
The plaintiff suffered what became a significant knee injury which was successfully treated by Mr Tiller.
There is now 5 per cent disability of the left leg at or above the knee.
There is no back or neck pain resulting from this accident.
Under this head I would have awarded the plaintiff $7,500.
Past loss of income
The plaintiff would have had damages representing the time off work following the arthroscopy. His earnings to the date of the work accident averaged $561 net per week. His loss to 30 August 1998 - 16 weeks at the rate of $561 per week, is $8,976. I would have awarded interest of $900 and lost superannuation of $1,250. This results in a total under this head of damage of $11,126.
Future loss of income
The plaintiff has been fit to return to his pre‑accident occupation of boilermaker though he would be confined to some small degree - to avoid prolonged kneeling or squatting. He may be slightly disadvantaged in obtaining employment as the years go by and to compensate for this I would award $5,000.
Past medical expenses
The plaintiff would be compensated for medical expenses related to the treatment of the knee to and after arthroscopy and for that procedure. I would have heard further submissions to quantify this sum if the question arose.
Future medical expenses
I would make no award under this head.
Conclusion
The plaintiff is awarded damages against the first defendant of $27,750.
The claim against the second defendant is governed by s 93D of the Act.
Section 93D is relevantly in the following terms -
"(1)Damages can only be awarded if the disability results in the death of the worker or it is a serious disability.
(2)A disability is a serious disability if, and only if -
(a)the degree of disability would, if assessed as prescribed in subsection (3) be 30% or more; or
(b)the future pecuniary loss resulting from the disability is of an amount that is at least equal to the prescribed amount."
Subsection (3) deals with the assessment of the disability, by reference to the -prescribed amount - $122,139.
The plaintiff cannot be said to have suffered an injury assessed at 30 per cent of the prescribed amount.
His future pecuniary loss is not at least equal to the prescribed amount.
The plaintiff's claim against the second defendant is accordingly dismissed.
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