Mehrabian v Victorian WorkCover Authority
[2020] VCC 1712
•30 October 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-19-02753
| ARASH MEHRABIAN | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE HINCHEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21, 22 and 23 July 2020 | |
DATE OF JUDGMENT: | 30 October 2020 | |
CASE MAY BE CITED AS: | Mehrabian v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1712 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to the function of the left lower limb – long-term severe mental or behavioural disturbance or disorder – paragraphs (a) and (c) of the definition of “serious injury” – relevant principles
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s335(2)
Cases Cited:Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Sabo v George Weston Foods [2009] VSCA 242; Mobilio v Balliotis [1998] 3 VR 833; Humphries & Anor v Poljak [1992] 2 VR 129; Noonan v State of Victoria [2013] VSCA 289; Transport Accident Commission v Katanas [2017] HCA 32; State of New South Wales v Moss (2000) 54 NSWLR 536; Hunter v Transport Accident Commission [2005] VSCA 1; Barwon Spinners Pty Ltd v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd (2006) 14 VR 602; Richter v Driscoll [2016] VSCA 142; Cardiff Corporation v Hall [1911] 1 KB 1009
Judgment: Application granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J B Richards QC with Mr S J Carson | Maurice Blackburn Lawyers |
| For the Defendant | Ms C Spitaleri | Wisewould Mahony |
HER HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s335(2) of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) for injuries suffered by the plaintiff in the course of, or due to the nature of his employment as a gardener with Live It Up Gardens (“the employer”) on or about 16 September 2014 (“the accident”).
2 The plaintiff seeks leave to bring proceedings for damages in relation both to pain and suffering and economic loss.
Relevant legal principles
3 The application for leave to bring proceedings for damages is brought pursuant to ss(a) and (c) of the definition of “serious injury” as that term is defined in s325(1) of the Act, namely:
“‘serious injury’ means—
(a)permanent serious impairment or loss of a body function;
…
(c)permanent severe mental or permanent severe behavioural disturbance or disorder;…”
4 The physical impairment relied upon is the function of the left leg. The mental disturbance or disorder relied upon is Depressive Disorder with associated anxiety symptoms.
5 In order to establish an entitlement to recover damages under the Act, apart from satisfying the definition of the phrase “serious injury,” by s5 of the Act, the relevant injury must have arisen out of or due to the nature of the plaintiff’s employment with the employer, on or after 1 July 2014. As set out in s325(1), the physical impairment or the mental or behavioural disturbance or disorder must be permanent.
6 The plaintiff has the burden of proof on the application. The standard of proof is on the balance of probabilities.
7 In relation to the physical impairment, by s325(2)(c) of the Act, it is the “consequences” of the physical impairment which produce the “pain and suffering” or “loss of earning capacity”, which must be “serious” – that is, if the plaintiff is to succeed in his claim relating to the function of the left leg, the plaintiff must prove, on the balance of probabilities, that the impairment or loss of that body function results in relevant “consequences” that are “when judged by comparison with other cases in the range of possible impairments fairly described as being more than significant or marked, and as being at least very considerable”. This has been referred to as the “narrative test”. It has been held that this task is largely a question of impression or value judgment.[1]
[1]See Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592 at 628; see also Sabo v George Weston Foods [2009] VSCA 242 at paragraph [67]
8 By s325(2)(d) of the Act, it is the “consequences” of the mental or behavioural disturbance or disorder which produce the “pain and suffering” or “loss of earning capacity,” which must be “severe” – that is, if the plaintiff is to succeed in his claim relating to the mental or behavioural disturbance or disorder, the plaintiff must prove, on the balance of probabilities, that the mental or behavioural disturbance or disorder results in relevant “consequences” that “when judged by comparison with other cases, in the range of possible mental or behavioural disturbances or disorders ... [may be] fairly described as being more than serious to the extent of being severe”. Again, this has been referred to as the “narrative” test. It has been held that this task is largely a question of impression or value judgment.[2]
[2]See Kelso v Tatiara Meat Co Pty Ltd (ibid) at 628; see also Sabo v George Weston Foods (ibid) at paragraph [67]
9 The meaning of the word “severe” was resolved by the Court of Appeal in Mobilio v Balliotis.[3]In that case, without suggesting the use of any particular adjective to mark the distinction between the two words, Brooking JA held that the word “severe” as used in the definition under the Act, is stronger than the word “serious”.[4] Winneke P agreed with Brooking JA’s reasons and agreed that the word “severe,” where relevantly used, was a word of stronger force than the word “serious”.[5] Phillips JA[6] and Charles JA[7] made comments to similar effect.
[3][1998] 3 VR 833 (“Mobilio”)
[4]Mobilio (ibid) at 846
[5]Mobilio (ibid) at 834-5
[6] Mobilio (ibid) at 858
[7]Mobilio (ibid) at 860-861
10 Applying these observations, it is clear that in order to be satisfied that the consequences of a mental disturbance or disorder are “severe”, I must conclude that those consequences are more than “very considerable” to the plaintiff.[8] In performing this analysis, it is necessary first, to identify and next, to bring to account, all relevant circumstances personal to the claimant. Then it is necessary to make a value judgment in accordance with the principles enunciated in Humphries & Anor vPoljak.[9]
[8]See Noonan v State of Victoria [2013] VSCA 289; Mobilio (ibid); Transport Accident Commission v Katanas [2017] HCA 32
[9][1992] 2 VR 129 at 140 per Crockett and Southwell JJ
11 Sections 325(e) and (f) set out the statutory formula by which, in usual circumstances, the Court must measure the plaintiff’s loss of earning capacity prior to any grant of leave. This formula provides that the plaintiff must establish a loss of earning capacity of 40 per cent or more, as measured in accordance with s325(f) of the Act. However, as the plaintiff was under 26 years of age at the time of the accident, s325(f) does not strictly apply to this case. Rather the plaintiff’s pre-injury earning capacity is determined by reference to the usual common law position.[10]
[10]State of New South Wales v Moss (2000) 54 NSWLR 536, per Heydon JA
12 In determining the application, the Court:
(a)must assess whether the injury is a “serious injury” as at the time the application is heard;[11]
(b)must give reasons that disclose the pathway of reasoning in dealing with the evidence and issues raised by the application.[12]
[11]Section 325(2)(j) of the Act
[12]See generally Hunter v Transport Accident Commission & Avalanche [2005] VSCA 1 at paragraphs [23]-[26]
13 Section 325(2)(h) requires me to disregard all psychological or psychiatric consequences in determining an application which relates to the physical impairment.
14 Section 325(2)(i) of the Act permits me to take into account the physical consequences of a mental or behavioural disturbance or disorder for the purposes of assessing whether or not that mental or behavioural disturbance or disorder is “severe” for the purposes of the Act.
15 By s325(2)(b) of the Act, in determining the seriousness of the “consequences” of the injury, the Court is required to assess the matter by reference to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made between the “consequences” of the physical impairment or the mental or behavioural disturbance or disorder arising from the injury the subject of this application, and the range of possible physical impairments or mental or behavioural disturbances or disorders.
16 In reaching my conclusions in relation to the application for leave to bring proceedings for damages, I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[13] and Grech v Orica Australia Pty Ltd & Anor.[14]
[13](2005) 14 VR 622
[14](2006) 14 VR 602
17 The plaintiff relied upon three affidavits, gave viva voce evidence and was cross-examined. The plaintiff also relied upon an affidavit from his mother, Ms Latifeh Jahanshahi. Ms Jahanshahi was not required to attend for cross-examination.
18 In addition, both parties relied upon medical reports and other materials which were contained in the Court Books.[15] I have read all of the tendered material. In this judgment, I will refer only to the relevant parts of the tendered material.
[15]The Amended Plaintiff’s Court Book was marked as Exhibit (“Ex”) P1; the Amended Defendant’s Court Book was marked as Ex D1
The Plaintiff’s background
19 The plaintiff was born in June 1990 in Tehran. He migrated to New Zealand as a child with his family, before migrating to Australia in 2011.[16]
[16]Ex P1, pp8-9
20 The plaintiff presently lives with his family.[17]
[17]Ex P1, p18
The accident
21 The plaintiff described the circumstances of the accident in the following way:
“I commenced employed with the Defendant on 16th September 2014. I was employed as a labourer to cut lawns and carry out general garden maintenance.
I suffered injury on my first day of work with the Defendant. I was clearing up cut branches and removing garden waste and loading all of this onto a trailer. The trailer had to be loaded by throwing branches over the top of a railing. My boss told me to get up onto the trailer in order to push the branches down so that we could make more space. To be able to do this, I had to climb up onto the wheel and then the mudguard of the trailer so that I could reach high enough.
As I was up on the trailer I lost my footing. I fell backwards and landed on the ground. I recall mainly landing on my left leg before falling to the ground and landing heavily on my right shoulder and my rib-cage struck a part of the trailer as I fell.
I also struck my head on some pavement and I believe that I was knocked out for a short period. I was pretty shaken up and unable to get myself upright. I recall my left knee ‘popping’ back into position. Having said that, at that stage, it was my neck and shoulder that were particularly painful.
An ambulance was called and I was taken to Box Hill Hospital. I had various scans after being admitted and was advised that the most significant damage was to my left knee, which had various bone fragments loose in it and internal bleeding.
I was discharged from hospital the next day. I was given a splint to wear on the left knee and then referred to have ongoing treatment as an outpatient. I was also certified to go off work.
I believe I attended as an outpatient 3 or 4 times. I also saw my local GP and was referred to have physiotherapy. As I was struggling with significant back, neck, shoulder and knee pain, I was being prescribed quite strong painkillers.
I was later referred to see a pain management specialist, Dr Symon McCallum, in September 2015. I was prescribed different medications, including Palexia and Norflex. I was also treated by a psychiatrist and psychologist as part of a pain management program.
Unfortunately, despite the passage of quite some time now, things haven’t really improved at all. This, of course, is very worrying for me. It has been a very difficult few years and things show no sign of getting any better. I have been left in a quite hopeless financial predicament and would very much like to be back in some full time work if I could.”[18]
[18]Ex P1, pp9-10
Evidence concerning the consequences of the Plaintiff’s injuries
22 The plaintiff swore three affidavits, the first dated 7 February 2019, the second dated 16 January 2020, and the third dated 20 July 2020.
23 In summary, his evidence as to the pain and suffering and economic loss consequences which he presently experiences, is as follows:
Experience of pain
(a)he has pain that is concentrated around his left knee, but his whole leg feels painful.[19] He has pain that goes down his left thigh, around the left knee and down into his left calf muscle. That pain is always there and it is only the intensity of the pain that varies;[20]
[19]Ex P1, p16
[20]Ex P1, p11
(b)he also feels pain in his left groin, buttock and hip area and in the left side of his lower back.[21] The intensity of the pain varies, but there is always some pain present;[22]
[21]Ex P1, p16
[22]Ex P1, p11
(c)there is at least some knee pain and lower back pain present all of the time.[23] The pain gets worse with certain movements such as bending or twisting from the waist, standing or walking for prolonged periods or when getting up from a low chair.[24] The stronger pain often feels a bit like an electric shock and can be quite sharp;[25]
[23]Ex P1, pp16-17
[24]Ex P1, pp11 and 17
[25]Ex P1, p17
(d) his left knee is always stiff in the morning and it takes a while for the knee to “loosen up”.[26] He finds that the knee will lock up or “catch” from time to time.[27] This locking and the increased sharp pain associated with it, usually lasts for a minute or two; [28]
[26]Ex P1, p11
[27]Ex P1, p17
[28]Ex P1, p11
(e) he has fallen over on a few occasions as a result of his knee locking up. He has tried wearing a compression-type bandage over the knee to provide the knee with extra support;[29]
[29]Ex P1, p11
(f) he finds that his whole thigh and the knee itself feels numb from time to time.[30] This usually lasts for a few minutes before settling down;[31]
[30]Ex P1, pp11 and 17
[31]Ex P1, p11
(g) he notices frequent swelling around the left knee. This is sometimes associated with increased pain but not always; [32]
[32]Ex P1, p11
(h) he has noticed that there is a slight change in the colour of the skin around the left knee and in the leg more generally.[33] His left leg can also feel warmer or cooler at different times during the day;[34]
[33]Ex P1, p17
[34]Ex P1, p11
(i)he experiences pain in the right side of his neck, right shoulder blade area and in his ribs, towards the right side;[35]
[35]Ex P1, p11
Treatment and medication
(j) he is no longer having much medical treatment. He does not think there is much more that the doctors can do for him;[36]
[36]Ex P1, p18
(k) his general practitioner advised him that the medication that he was taking is not good for his health. He also found that the stronger medication made him groggy and did not really help much with the pain. As such, he simply “[puts] up with and [pushes] through the pain as best … [he] can;”[37]
[37]Ex P1, p18
(l) his general practitioner, Dr Aloysius Law, has prescribed him Endone to manage his pain and symptoms;[38]
[38]Ex P1, p129
Sleep
(m) by reason of his pain, he does not get a lot of sleep each night. The sleep he does get is not quality sleep.[39] He gets about two hours of sleep in a row before his leg or lower back pain wakes him up. He gets a total of about three hours sleep per night. This leaves him feeling tired for much of the time;[40]
[39]Ex P1, p12
[40]Ex P1, p18
(n) he finds that his tiredness makes it harder for him to deal with his pain and the “… consequential limitations on what … [he] can do;”[41]
[41]Ex P1, p18
(o) he often falls asleep for brief periods during the day;[42]
[42]Ex P1, p18
Activities of daily living
(p) the plaintiff lives with his family and is assisted with many basic chores, including some basic self-care, such as pulling on pants, shoes and socks;[43]
[43]Ex P1, p12
(q) he does not do much with his time during the day. He assists with light chores around the house when he feels up to it. However, he finds that standing for more than about ten minutes brings on significantly increased leg pain, as does walking for a similar period of time. He tends to be more active when the pain is not as bad. He does very little when the pain flares up;[44]
[44]Ex P1, p12
(r)he is able to dress himself, but putting on socks and pants can often be painful. This is made more difficult by his inability to bend his left knee;[45]
[45] Ex P1, p17
(s)his mother usually cuts his toenails as he finds it very painful bending for even a minute or so. He finds it embarrassing that he needs to be helped in this way;[46]
[46] Ex P1, p17
(t)he can usually walk for about 50 metres at a time before his knee pain becomes a real issue for him. He has to sit down and have a rest before he can attempt to keep walking. If he tries to walk much further, he ends up in a lot of pain and can be laid up for a number of hours afterward. The pain he experiences is throughout his knee and leg and goes up as far as his hip and low back area;[47]
[47]Ex P1, p18
(u)he often walks with a slight limp;[48]
[48]Ex P1, pp17-18
(v) he used to be quite active at the gym and would go a number of times each week to do weight training. He can no longer do this, which upsets him;[49]
[49]Ex P1, p12
(w) he was keen on motor racing before the incident. He described it as a “… real passion …”. He has not participated in this for a long time as a result of his injuries. He feels a great loss in relation to this and it still upsets him when he thinks about what the injury “… has cost me in that regard;”[50]
[50]Ex P1, p12
(x) he does not have much of a social life anymore.[51] He leads a lifestyle which is mostly inactive, where he stays home most of the time and does not get out much.[52] He sometimes goes for short drives in his car or attends shopping malls with his mother;[53]
[51]Ex P1, p12
[52]Ex P1, p18
[53]Ex P1, p18
(y)he had a partner before suffering his injuries, however, “… she left … [him] after … [he] was injured;”[54]
[54]Ex P1, p12
Capacity for employment
(z)as a result of his pain, he has not been able to get back to work for some years.[55] He has been left in a hopeless financial predicament and would very much like to get back to some full-time work if he could.[56] He relies on his family for financial assistance, as well as the basic necessities of life;[57]
[55]Ex P1, p12
[56]Ex P1, p10
[57]Ex P1, p18
(aa)he had hoped that the job he had found with the employer would provide him with the income to allow him to pursue some form of study relating to computer hardware or the construction of computers. He had also hoped that one day he might be able to work or even run his own motor vehicle workshop, as cars and modifying them had always been a passion of his. He now feels “… a deep sense of sadness and loss…”, as these opportunities are now lost to him as a result of his injuries;[58]
[58]Ex P1, p19
(bb)he would very much like to be working and not be a burden on his family. As a result of his injuries, he has been unable to find suitable work, as his days are dependent on how bad his pain is, which often leads to him not being able to do much at all;[59]
[59]Ex P1, p19
(cc)he looks at job advertisements, but doubts that there is a job out there where he could “…come and go depending on how bad my pain was or how well I was coping with the pain”;[60]
[60]Ex P1, pp19-22
(dd) in 2020, he found a job through word of mouth with an exhaust shop in Frankston. He contacted the manager, who asked him to come in and work a shift. He was provided with a manual ute to drive. He was asked to pick up and deliver parts. He struggled with pain whilst driving, so contacted the manager to ask if there was another car that he could use. He was told that the vehicle he was driving was the only one. He returned to the exhaust shop where he and the manager agreed that he would not continue working due to the pain in his knee and his inability to do the job;[61]
(ee) he has not attempted to look for other work since he tried the delivery work in February 2020;[62]
[61]Ex P1, pp128-129
[62]Ex P1, p129
Effect on mood and psychological impact of the injury
(ff) he feels that he now leads “… a very sad existence …”. He finds it hard to feel a sense of happiness about anything as he is in constant pain and is limited in what he can do because of his injuries and his very limited financial means. He said that his father has assisted him by giving him $20 each week for fuel. He cannot go far or do much with that amount of money;[63]
[63]Ex P1, p19
(gg)he has been suffering from significant levels of anxiety and depression for some time. He tries to remain positive but does not find this easy;[64]
(hh)he often feels “… overwhelmed by a sense of panic …” which can occur a few times each day;[65]
(ii) despite the passage of time, his physical condition has not really improved at all. This is very worrying for him.[66] He has experienced “… a very difficult few years and things show no sign of getting any better”.[67]
[64]Ex P1, p19
[65]Ex P1, p19
[66]Ex P1, p10
[67]Ex P1, p10
24 Under cross-examination, the plaintiff gave the following relevant evidence:
(a)he did not have a job while living in New Zealand and did not receive any unemployment benefits while he was there;[68]
[68]T25, L5-6 and L10-11
(b)he was involved in driving racing cars, but that was more of a hobby and passion of his, not a job;[69]
[69]T25, L7-9
(c)between 2011 and 16 September 2014, he had never had a paid job;[70]
[70]T25, L14-15
(d)he had tried to apply for jobs in Australia but “… they did not recognise me because I did not have any qualifications and my age was too low to be supported by any sort of job …”;[71]
[71]T25, L21-24
(e)he had applied for jobs as a sales assistant at JB Hi Fi and Harvey Norman. He had applied for about four to five jobs in the period between 2011 and September 2014. He gave up applying for these positions as he “… never heard back from them at all”;[72]
[72]TT25-26; T66
(f)he had a right to work when he first arrived in Australia, as he had a special category visa which permits a person to live and work in the country. He was not entitled to receive any Centrelink payments or unemployment payments;[73]
[73]T26, L22-29
(g)before 16 September 2014 he would “… mostly spend the day with … [his] father and my family, help them out …”. He would go to the gym, help his brother out with jobs, and sometimes his brother would come home and “… teach … [him] some stuff …” on computers;[74]
[74]TT26-27
(h)he denied that he sat at home and did nothing. He said that he “… was helping … [his] family, I was engaged with life with family members, with my brother, with my sister and with my father and mother”. He disagreed that in May 2019 when quizzed by occupational physician, Dr Peter Wilkins, about how he spent his weekdays, he told him on several occasions that he sat at home doing nothing. He said that the doctor must have got that wrong;[75]
[75]TT27, L9-29
(i)he enjoyed doing car maintenance before the incident; however, had not done this since the incident;[76]
[76]T28, L9-12
(j)he denied that before the incident he liked playing computer and PlayStation games, saying, “No, I did not. Not that much, you know. When I was younger, yes, but as I was ageing, I lost interest.” He has not played computer games or PlayStation games since the incident;[77]
[77]T28, L13-18
(k)he denied studying information technology (“IT”) in September 2014. He said that he was being taught IT by his brother;[78]
[78]T28, L19-20
(l)he agreed that in January 2015, he had told Mr Clive Jones that he was currently studying IT and that he had put his studies on hold. He explained that this was a reference to his brother teaching him;[79]
[79]TT28-22
(m)the employer’s terms of his employment on 16 September 2014 were, “just to show up early that day and… to attend [to the] the jobs. It was a trial day.” He said that the employer had told him, “You start today and you can turn into full time once everything goes well”;[80]
[80]T29, L18-23
(n)he agreed that 16 September 2014 was a trial shift and that if he did not work well he would not continue with the job. He thought the hourly rate would have been “roughly around $20 to $22 per hour,” four days per week.[81] He later agreed that the pay rate might have been $18/hour;[82]
[81]TT29-30
[82][82] T32, L18-22
(o)he disagreed with the proposition that he had not ever been offered the job by the employer despite the employer writing in his letter to the Victorian WorkCover Authority that “‘The worker was injured on a trial day’”. He said that “He did offer me the job because it was a trial to get me started, so that he could… give me the job, … It was a trial to … work these days, you started the trial and then they keep you;”[83]
[83]TT30-31
(p)he agreed that he had told the ambulance officers who attended to him after the accident that he could not move his right arm. He added that he could also not move his neck. When asked why it was documented that he was able to move his right arm around without distress when not focused on it, he responded, “… because I was in so much pain that day… I actually didn’t know my body part [and] what I was doing at that stage”;[84]
[84]T33, L5-25
(q)he confirmed that the signature on his Claim Form was his.[85] He confirmed that he had made sure that he had listed on the Claim Form all of the injuries he thought he had suffered in the incident. He agreed that he had listed his neck, left knee, right ankle, right shoulder and ribs. He said that he did not mention his back injury because: “… my back gradually came into play after the injury …”. His back started to become sore about a month after the accident; [86]
[85]T34, L1-2
[86]T35, L7-25
(r)it was put to the plaintiff that the first medical note of him reporting back pain was in May 2015, viz: “‘Since three weeks ago, getting lower back pain too.’”[87] In response to this, he said that he had told the doctor about his back pain, but that perhaps it was not severe enough for him to make a note. He disagreed that his earlier evidence had been that his back pain was very severe within a month of the incident, saying that he was “… gradually starting to have [a] back problem after that;”[88]
[87]T37, L16-31
[88]TT37-38
(s)in early May 2015, he “… was having… severe joint pain … and pain gradually going to the left side of my body…I was noticing this pain travelling to my lower back…;”[89]
[89]T38, L21-30
(t)his general practitioner referred him to see pain specialist, Dr Symon McCallum. He first saw the pain specialist in September 2015. In January 2016, Dr McCallum arranged for him to undergo an MRI scan of his back. He confirmed that he been told that the MRI scan was normal;[90]
[90]TT38-39
(u)he saw psychiatrist, Dr Katherine McQuillan, on about five occasions between March 2016 and 20 June 2017. He said that he ceased seeing her because funding was terminated after that date.[91] He agreed that he had stopped seeing Dr McCallum in June 2017 and also stopped physiotherapy treatment in 2017;[92]
[91]T39, L7-13
[92]TT39-40
(v)in April 2020, he started requesting prescriptions for Endone from his general practitioner. He confirmed that he had stopped taking all medication prior to this. He could not recall the date when this decision was made.[93] He agreed that it could have been in early 2018. He said that, amongst other things, the medication had not been taking his nerve pain away;[94]
[93]T40, L8-24
[94]T41, L13-27
(w)when asked why he had sworn in his affidavit of 7 February 2019 that he was taking numerous medications, when he now said that he had stopped all medication in early 2018, he said “That’s right, but not all of a sudden … I very slowly stopped taking the medication, I didn’t instantly stop taking them;”[95]
[95]TT41-43
(x)he agreed that the records showed that there was no prescription for Palexia, Norflex or Valdoxan after July 2018. He said that this was because he had received “… so much prescriptions …” from Dr McCallum and Dr Law and that the “… prescriptions [were] just sitting there that I was gradually trying to finish them as I was trying to slow down and cut myself from the medications”. When it was suggested to the plaintiff that he was being untruthful about stopping his medications, he said, “… I’m being honest here, I took my medications and I stopped taking them gradually…;”[96]
[96]T43, L10-27
(y)it was suggested to him that he is not presently having treatment because he is not keen any to see any more therapists. He denied this, and said it is because he cannot afford the treatment. He said that he told his general practitioner this fact;[97]
[97]T45, L8-24
(z)he said that he presently experiences pain in his “left joint area”, lower back and in his head. He said, “… it’s all connected and travels through my back as I get a lot of build up of pain in my joints …”;[98]
[98]T45, L25-31
(aa)the pain in his back is “severe, very severe”. He agreed that his back pain causes him to have problems when sitting in low chairs and trouble getting in and out of cars. He confirmed that he had to make sure that he got in and out of cars carefully, saying, “I have to grab a hold of something and if I have a good support holding onto something I can get myself out pretty quickly but I have to support onto something”;[99]
[99]T46, L1-14
(bb)he has difficulties carrying things because of his back pain. He has tried to carry about 2 to 3 kilograms. He thought that on a bad day he would not be able to pick up 5 kilograms;[100]
[100]T46, L15-22
(cc)he has trouble putting on his shoes and socks. His mother helps him with this. He usually wears sandals when he is at home but when he goes out he tries to make himself look neat and puts on shoes with straps, which his mother assists him with;[101]
[101]TT46, L23-30
(dd)he can dress himself, “… but not fast”.[102] When asked why he had told a vocational assessor that he needed his brother’s help to dress, he said: “… you have your good days and you have your bad days … some days I can put my clothes on really slowly … but some days I … need assistance …;”[103]
[102]T47, L26-27
[103]T48, L16-31
(ee)his knee pain is “… quite severe …” but he tries to “act normal and walk normal, most of the time I try to be like what I used to be”. He said that while his pain is there constantly, he can “force [himself] … to walk … like a normal guy … and … can ignore the pain … but five … ten minutes down the track it catches … [his] breath…;”[104]
[104]T49, L11-27
(ff)he agreed that he can usually walk for about 50 or so metres at a time before his knee pain becomes a problem and he needs to sit down to have a rest. He qualified this by saying “… sometimes it doesn’t get severe that quick …”. He also said that sometimes he limps and sometimes he doesn’t: “… it depends on the day I have the pain and it depends how much Endone I have taken on that day as well … .” He said that even when he does not take Endone, he tries not to limp when walking;[105]
[105]T50, L6-18
(gg)he confirmed that he sometimes uses a walking stick around the house, but that he tries not to;[106]
[106]T50, L19-28
(hh)he has a “… weird sensation on the skin …” if someone touches his left knee lightly, but if it is squeezed, he experiences “… a lot of pain”. He confirmed that he does have sensation around his left knee.[107] He agreed that in 2016, he told Dr McCallum that he had no sensation around his knee and left thigh. He said that he was “quite severe back then,” but has now improved and had sensation around his left knee;[108]
[107]T51, L5-10
[108]T52, L2-8
(ii)he agreed that he saw pain specialist, Dr McCallum, on 25 January 2016 and told him that “… his brain was hurting due to the pain”.[109] He disagreed that he has “pain everywhere,” saying that he experienced pain only in “certain parts” of his body;[110]
[109]T51, L17-29
[110]TT51-52
(jj)the pain in his right shoulder has “… completely gone,” but he still has difficulty lifting his right arm to shoulder height;[111]
[111]T52, L9-18
(kk)he does not have much pain in his neck but sometimes “… it does build up …”. He agreed that because of his neck pain, he has difficulty turning his neck;[112]
[112]T52, L22-25
(ll)he recalled that he told a psychiatrist that he had stopped driving about eighteen months ago, but said that “… I believe I still did try to drive during that period … I still forced myself to drive … but I did have days which … I just couldn’t drive …;”[113]
[113]TT53-54
(mm)when he drives he does not go too far, “… just short distances … just to Doncaster Mall … Box Hill Mall Central … I visit my GP …;”[114]
[114]T54, L10-22
(nn)it was put to him that he drove when it was absolutely necessary. He agreed with this, but also said that he sometimes drives to get out of the house because he has a build up of anxiety: “… it was emotionally necessary for me to go out …;”[115]
[115]T55, L8-19
(oo)he was shown surveillance footage filmed on 28 May 2019. After viewing the footage, he said that he believed that he was attending an appointment with a doctor engaged by the defendant, Dr Rodney Simm. He agreed that the vision showed him hobbling down the stairs. He disagreed that he was walking slowly on that day because he had seen the surveillance people saying that, “That’s how I walk …”;[116]
[116]TT55-56
(pp)he was shown further surveillance footage. He agreed that he was carrying two shopping bags with meat in his left arm. He disagreed with the proposition that the bags would have been quite heavy, saying, “No, not at all”, stating when asked about its weight, that they were “Probably three to four kilos …”;[117]
[117]TT56-57
(qq)he said that he did not see himself raise his right arm above shoulder height in the second surveillance video. He was shown the surveillance footage again and said that he saw that his right arm had been raised to the height of his shoulder, not above his shoulder. When pressed, he disagreed with the proposition that his arm was well above shoulder height and that it was almost up in the air, saying, “… you can see that it was not above the shoulder, it was right up to the height of the shoulder”;[118]
[118]TT57-58
(rr)he disagreed that he was able to easily get in and out of the car as depicted in the surveillance footage;[119]
[119]T58, L13-18
(ss)he disagreed with the proposition that he was walking differently in this footage in comparison to the footage of 28 May 2019 when he knew that he was being filmed. He said that on the day on which the second footage was taken, “… I was able to walk a little bit more comfortably for myself. But I was still limping that day …;”[120]
[120]TT58-59
(tt)he was shown surveillance footage of him shopping at IKEA. He agreed that he was shopping with his parents but disagreed that he was walking at a normal pace, saying, “no, I was walking pretty slow, not normal”;[121]
[121]T60, L8-16
(uu)he said that he had taken “… about three Endones and two Panadols in the morning …,” because he knew his father was taking the family out that day;[122]
[122]TT60-61
(vv)he confirmed that he was able to reach his right arm to put his hoodie on top of his head while he was on the escalator without any problems saying, “Yes, that’s because I twisted my right arm to be able to get my hoodie up, using my left hand to support me”;[123]
[123]T62, L2-6
(ww)he agreed that he was able to walk more than 50 metres while at IKEA, saying, “Yes … they have a restaurant upstairs, which we attended during that day. So I was sitting down upstairs having breakfast on that day in the morning;”[124]
[124]T62, L9-12
(xx)he confirmed that his evidence was that he had started taking Endone in April 2020. When he was asked how he could have taken Endone on that day, he said, “It’s because my doctor prescribed me with a lot of scripts before I discontinued my medication. And I always kept … two full size packs of Endone aside … just in case, for some days I might need it;”[125]
[125]T62, L13-25
(yy)he was shown surveillance footage taken on 11 December 2019 where he was seen driving. He confirmed that this footage was one of the rare occasions where he went out driving alone, saying that, “… because I get the depression back and I don’t feel too well so I try to go out and try to be normal again”;[126]
[126]TT62-63
(zz)he confirmed that he did not have any problems getting into the car on that day;[127]
[127]T64, L2-9
(aaa)he was shown surveillance footage taken on 16 December 2019. When queried about where he was going on that day, he said that his mother had “… forced … [him] to go for a drive”, so he “… went for a drive”. He said that he drove around the Box Hill area. When it was suggested to him that in fact he was going to a medical examination with Dr Peter Wilkins and was driving to the city on that day, he conceded that if that was the case, his mother must have attended this appointment with him where she “helped” him and drove “half way” to the appointment;[128]
[128]TT64-65
(bbb)he denied that he had grossly exaggerated his symptoms to doctors. He said, “I am suffering. I am in a lot of pain … I am only 30 years old and I tried my best to go and be normal again …;”[129]
[129]TT65-66
(ccc)when challenged about the fact that he had never worked before the date of the incident and was questioned regarding the basis on which he was saying that he would like to go back to work, he said, “On the basis that I need to pay for my daily … life, I need to pay for my rent, my water, my electricity…;”[130]
[130]T66, L7-25
(ddd)when asked whether he had taken any steps to try and educate himself, he said that he wanted to, but that Centrelink would not help him because he is a New Zealand citizen;[131]
[131]T67, L10-16
(eee)he was shown surveillance footage of him at a service station on 22 May 2020. He disagreed that he was bending at the waist to put the petrol cap on the car. He said that he was “just slightly tilted” to check to see that the petrol cap had been fitted properly. He agreed that he was not limping in the film: “Because that day was a good day, and I was feeling good … .” He disagreed that the footage showed that he was walking at a normal pace. When asked to view the footage later in the hearing, it was agreed between the parties that the footage showed that the plaintiff was attending to the petrol bowser. He leaned forward and looked at the petrol cap for a short time, then he stood up and reached into his car. He then walked seemingly without a limp into the service station to pay and walked back to his car, also seemingly without a limp. When asked whether he thought that the footage showed him walking normally without a limp, the plaintiff responded, “Yes, it does”;[132]
[132]TT67-68, TT122-123
(fff)he was shown further surveillance footage of him undertaking repairs inside a car on 28 October 2015. He said that he was undertaking maintenance on the door handles. When asked about the footage showing that he had no difficulty in turning his neck to look into the car, he said, “… that was fresh off the injury I had … my injury was not stable at that time … when I got discharged from the hospital they gave me a big splint … that I was wearing under my pants that day, that I was able to carry my load onto my leg completely to support my body to be able to move around a vehicle like that … .” He said that the film did not show much bending: “… sort of a tilt … .” He denied that the film showed him engaged in car maintenance. He defined car maintenance as jobs like oil or brake changing;[133]
[133]TT71-72
(ggg)he was shown various entries on his bank statements. He said that entries showing amounts received of $9,500 and $15,152.79 were money that he had received from CGU;[134]
[134]TT73-74
(hhh)he confirmed that he had previously said that he had not played any computer games or PlayStation games. He disagreed that he had purchased a computer game or PlayStation game from EB Games on 27 February 2019. He said that this transaction was for a figurine that he had purchased for a friend’s birthday. On 12 March 2019, he advised that the transaction from the gaming company Ubisoft was a fraudulent transaction. He said that he contacted his bank regarding this and that the monies were refunded back into his account. He advised that the transaction for a PlayStation Network on 2 August 2019 was for his brother who had asked him to purchase the game, as he engages in gaming. The plaintiff said that the transaction from Blizzard Entertainment on 30 October 2019 was another episode of fraudulent activity. He said that he contacted the bank and he was issued with a new card. He confirmed that he would be able to identify when the fraudulent amounts of monies had been returned into his account. The plaintiff was not pressed for this information. He said that on 6 November 2019, he purchased something for his brother’s PlayStation network account;[135]
[135]TT74-77; TT121-122
(iii) he said that he goes to Autobarn as they have things like cheap oil for sale. He agreed that on 3 April 2018, he went to Repco and made a purchase at that store, then went to Supercheap Auto and made a purchase, before going back to Repco to make a further purchase. When queried about what these purchases were, he explained that they were minor purchases for items needed for his car and to allow his father to replace a broken part on his car. When asked to comment on further purchases that he made on 3 April 2018 from Autobarn and Automotive Brands, he said that he could not recall what these transactions were but that he was sure that they were “… definitely for liquids for a car … engine oil and extras … injective cleaners … radiator stop leak, coolant fluid, as well as brake fluid …”, as he had a lot of engine issues;[136]
[136]TT77-78
(jjj) he denied that he had assisted his father with car repairs, saying that his father attended to these repairs himself as he was a mechanic when he was younger, so was able to undertake the repairs for him;[137]
[137]TT78-79
(kkk)he confirmed that on 8 March 2019, he had purchased liquids for the car from Speed Parts for his father, then more liquids on 11 March 2019 from Automotive Brands, and then the following month, a brace from Supercheap. He was also referred to another transaction from Autobarn on 23 April 2019. The plaintiff disagreed with the proposition that he regularly travels to auto repair shops for the purposes of doing maintenance on cars that belong to him or family members, saying, “I don’t have any cars under my name and I don’t do any kind of car repairs …;”[138]
[138]T79, L1-26
(lll)he agreed that he had said that he might be able to study something to do with computer hardware and the construction of computers. He said that he wanted to work towards a role within the computer industry as he had a passion for computers, along with cars. He said that his brother was an IT technician and would home school him about computers: “how things work and how things are done, and that’s how I learned a little bit about computers …;”[139]
[139]TT80-81
(mmm)he confirmed that in November 2019, he had told vocational assessor, Mr Hartley, that he did not have “‘… any aspiration to work with computers, as his only desire is to drive a truck or a racing car, thus he has not kept up with changing software programs since leaving school more than a decade ago, or sustained any reasonable keyboarding speeds’…”. When questioned about whether the real situation was that he did not have any desire to work in IT he said, “Yes, I did, but then again you lose your passion toward something … these things happen and you change your path … that’s just life …”. He disagreed with the suggestion that the information he had put in his second affidavit about his desire to study something to do with computer hardware was untrue. He agreed that the loss of his interest in pursuing a career with computers was nothing to do with his injury. He later said that his loss of interest was due to a build-up of anxiety;[140]
[140]TT81-83
(nnn)he agreed that he was referred to a vocational specialist by the WorkCover insurer. He said that the reason he did not attend the initial appointment arranged for him on 5 May 2016 was because the consultant was rude to him;[141]
[141]TT85, L1-31; T100, L16-28
(ooo)he agreed that he was sent a registered letter asking him to attend an appointment scheduled on 27 May 2016 to discuss his injury management with a rehabilitation consultant. He said that he failed to attend this appointment “… because I did not have the capacity to do what they wanted me to do at that appointment”. When questioned about what was expected of him at this appointment, the plaintiff said that “They wanted me … to apply for … a certain amount of jobs that I was incapacity [sic] to do … ;”[142]
[142]TT86, L1-31
(ppp)he disagreed with the proposition that he had not attended any appointments with the vocational specialist and rehabilitation consultant because he had no interest in getting a job;[143]
[143]T88, L9-17
(qqq)he confirmed that a file assessment report needed to be completed as a result of him refusing to attend a vocational assessment in September 2016. He disagreed with the suggestion that his reasoning for not participating was because he was not interested in getting back to work;[144]
[144]T88-89
(rrr)he disagreed that the reason for him not working since leaving school and the date of the incident was because he was not interested in working, saying that he “… never had the qualification to find a job that I wanted to do. I never got qualification to be able to find any sort of job. You cannot find any sort of job without any sort of qualification easy. …;”[145]
[145]T89, L12-20
(sss) he confirmed that he was able to read and write English, had good numeracy skills and reasonable computer skills;[146]
[146]T89, L21-23
(ttt)he said that other than the job at the exhaust shop in February 2020, he had not applied for any jobs since the incident on 16 September 2014. He said that the reason for this was “because I have been disabled in a way that I was unable to apply for any sort of job …”;[147]
[147]TT89-90
(uuu) he denied that he had told his general practitioner, Dr Law, that he was able to lift 20 kilograms. The plaintiff stated that he had told Dr Law that he required a letter indicating this so that he could get the exhaust shop job and that Dr Law knew that he was unable to lift more than 5 kilograms. He said that once his new employer had the letter, he “gave me a shot at the job”. He disagreed that the reason Dr Law gave him the letter was because the plaintiff had told him that he was able to lift 20 kilograms;[148]
(vvv)he said that the exhaust shop job involved him picking up small objects for exhaust parts like gaskets from locations and then returning back to the warehouse. He confirmed that the issue with the job was driving a manual car. He said that irrespective of the vehicle being a manual, he was “… still unable to do that job because of the amount of travelling between stores … I was uncomfortable sitting … in a stationary situation for too long … .” He was questioned about this response in comparison to the evidence he gave regarding travelling to automotive stores sometimes more than once to make different purchases like on 3 April 2018. To this he said, “… those shops are pretty close to each other. They are located in Nunawading. They are right next to each other, so there is not much distance between stores to store …;”[149]
(www) he said that at the exhaust shop job, he tried to push through but “… couldn’t make it through half a day” on his first day. He said that he had asked the owner if he could use his own car but was told that was not possible. He disagreed with the proposition that he was unable to complete a day of work because he was not trying;[150]
(xxx)he said that he had not looked for work since February 2020, after working less than a day at the exhaust shop. He disagreed with the proposition that he was not motivated to not get a job because he thought he was going to receive a lump sum payment from his Court proceedings. He agreed that he saw lawyers within a few weeks of his accident, stating, “I’ve been seeing my lawyers ever since the accident”;[151]
(yyy)he agreed that he has a heavy driver’s licence that expires in May 2021. He confirmed that he had sat and passed the licence test sometime after the incident. He said that the licence permitted him to drive small semi-trailer trucks with an automatic transmission. He said that he was “forced to get the licence by IPAR” as they told him that if he did not do it, CGU would “cease all [his] payments”;[152]
(zzz)he disagreed that he could be working as a gardener’s assistant He also disagreed that he could work as a despatch clerk, where the job involves receiving packed boxes and entering the order into a computer system. He said that he could not do that job as it required him “… moving around, and you’re constantly on your foot, that you have to stand. That puts a lot of pressure on my back and joints … I’m unable to do that”. he was referred to the job of despatch packer. He confirmed that he could pick up a light box and scan the bar code, saying, “Yes, I could do that but then again I get a lot of build up of pain from standing for too long or doing certain jobs at a certain amount of time …”. When asked again whether he thought that he could do the job now that he had understood what the job of a despatch clerk involves, he responded “No, I disagree”;[153]
(aaaa)he agreed that he received an impairment determination payment from CGU in the sum of $22,240. When questioned about the fact that the sum of $24,652 identified in his bank account statement, did not equate to the payments that he said he had received from CGU, he said that the higher amount was inclusive of monies he had received from selling items online. When questioned further about a deposit made for $9,500, he remembered during the course of his cross-examination that he received this payment after selling his father’s Navarra truck;[154]
(bbbb)the plaintiff was referred to an array of funds received from a variety of people identified in his bank statements. He said that he did not have an online business, but had online accounts, like Gumtree, to sell items online. He said that he sold items so that he “could get some money in my hand”. He said that the items he sold were either his or from his father or brother;[155]
(cccc)he confirmed that he had not told any of his doctors that he had a capacity to trade and sell things online, nor had he mentioned this in his affidavit. He said that the reason for this was because he was never asked to. When queried about whether selling online was something that he regularly did in his day-to-day life, he said, “No, not anymore, I don’t have anything else to sell”. He said that he did not believe that he had sold anything online since 12 February 2020. He was then referred to deposits that he had received on 20 February 2020, six deposits in April 2020 – two of which were deposited in cash at the Balwyn ANZ branch and further deposits in May 2020. He said that this was money given to him by his father;[156]
(dddd)when asked if he was capable of talking to people and posting advertisements online to sell items and being capable of negotiating a selling price, he said, “It’s pretty easy … I’m no disabled mentally, I can do this”. When it was then suggested to him that he would be capable of doing a sedentary job because he is mentally fine, he disagreed, saying, “Yes, mentally I’m fine. But the anxiety and the depression I get from not being able to do … what I used to do, that is what triggers me the most”.[157]
[148]T91, L8-27
[149]TT91-94
[150]TT94-95
[151]T96, L5-28
[152]TT96-99
[153]TT99-100
[154]TT101-108
[155]TT116-124
[156]TT116-124
[157]TT124-125
The lay witness
Ms Latifeh Jahanshahi
25 The plaintiff’s mother, Latifeh Jahanshahi, gave the following relevant evidence in an affidavit sworn on 16 January 2020:
(a)she is the plaintiff’s mother. She lives with the plaintiff and sees him on a daily basis in the family home;[158]
(b)the plaintiff now leads a very inactive lifestyle. She sees his pain simply by watching the way he walks around the house. She often hears him mentioning that he is in pain. She sees that the plaintiff usually walks with a slight limp and that this can be worse when he is in pain;[159]
(c)the plaintiff helps her around the house with lighter chores. They sometimes go to a local shopping mall or supermarket together. The plaintiff sometimes drives his car, but quite often others will drive him if he is “bad pain”;[160]
(d)she sees that the plaintiff has difficulty with things like putting on his pants and shoes. She often helps him cut his toenails, as he is “clearly in too much pain” when he tries to do this himself;[161]
(e)she knows that the plaintiff is very unhappy and that he would prefer not to rely on his family for support;[162]
(f)the plaintiff always had a dream of working with cars or computers;[163]
(g)as a parent, it has been very hard to watch the plaintiff “struggle with an injury in this way”.[164]
[158]Ex 1 P 14
[159]Ex 1, p14
[160]Ex 1, p15
[161]Ex 1, p15
[162]Ex 1, p15
[163]Ex 1, p15
[164]Ex 1, p15
26 The plaintiff’s mother was not required to attend for cross examination.
The medical evidence
27 There were numerous medical reports contained in the tendered material. Both sides provided reports from medico-legal experts. A precis of the medical materials is set out below.
The Plaintiff’s medical evidence
28The plaintiff was seen following the accident by his family general practitioner, Dr Aloysius Law. Dr Law provided four medical reports in relation to his treatment of the plaintiff in the Plaintiff’s Court Book.
29In a report dated 5 August 2019, Dr Law noted that around April 2018, the plaintiff had decided to cease all his medications, and that he had not discussed this with any of his specialists or with Dr Law. He noted that the plaintiff had seen a pain specialist, Dr Gavin Weekes, on 18 July 2018, and that Dr Weekes had agreed on a diagnosis of Complex Regional Pain Syndrome (“CRPS”).
30Dr Law noted that the plaintiff still suffered from chronic pain involving not only his left knee but also his neck, back, left ankle, right chest wall and right shoulder. He noted that the plaintiff walks with a limp and has not engaged in any form of employment since his initial injury on 16 September 2014. Dr Law noted that CRPS is a “poorly understood chronic medical condition carrying an unfavourable prognosis”. He thought the fact that the plaintiff had not worked for almost five years since his initial injury was a poor prognostic indicator. He thought that this, together with the plaintiff’s persistent anxiety and depression which have failed to improve, are all factors that are “making him likely to be unable to work indefinitely”. Nevertheless, Dr Law was of the opinion that if the plaintiff was willing to attempt any form of employment deemed to be suitable, he would suggest starting on a part-time basis of two to three days per week, up to twenty hours for the week.[165]
[165]Ex P1, pp29-30
31 In a report dated 7 June 2020, Dr Law again set out the plaintiff’s symptoms, which had not changed since his last report. He noted that the chronic nature of the plaintiff’s pain was consistent with a diagnosis of CRPS. He thought that the plaintiff’s condition has become “static with or without medical treatment and is not likely to remit despite medical treatment”.[166]
[166]Ex P1, p126
32 The plaintiff was seen by pain specialist, Dr Symon McCallum, on 21 September 2015. Dr McCallum noted that at that time, the plaintiff’s pain was around the front of his left knee and goes around the back of his thigh. He said the plaintiff reported that it was sharp and aching and makes him feel tired. The plaintiff said he can only walk around the house and his leg feels weak and numb occasionally. The plaintiff told Dr McCallum that he also had pain in his lower back which is central and goes to the left side. The plaintiff told Dr McCallum that he had had the back pain for a few months after the accident. His sleep had been very poor. In the last six or seven months prior to seeing Dr McCallum, the plaintiff could only sit for one hour due to the lower back and leg pain. Dr McCallum noted that the plaintiff’s mood at that time was poor and that he was depressed. He noted that the plaintiff felt tired and anxious and had occasional panic attacks. The plaintiff reported that he shared a home with his family, who are doing all the chores for him. The plaintiff told Dr McCallum that his family are caring for him and that his mother occasionally puts his socks on. He noted the plaintiff had financial stress at that time.
33 Dr McCallum concluded that the plaintiff was depressed and anxious. He said that the plaintiff had lower back pain which is probably muscular in origin. He noted that the plaintiff suffered from chronic left-sided knee pain. He thought the plaintiff may have developed central sensitisation, in which case the pain may be neuropathic in origin. Dr McCallum found it difficult to give the plaintiff a clear diagnosis due to some possible abnormal illness behaviour demonstrated during the examination. He noted that this conduct did not mean that the plaintiff was pretending or faking his pain. Dr McCallum thought that as things presently stood, the plaintiff’s prognosis was poor.[167]
[167]Ex P1, pp120, 121 and 125
34The plaintiff was seen by Dr Katherine McQuillan, psychiatrist, on 31 March 2016, following a referral by his pain physician, Dr Symon McCallum. He was reviewed again by Dr McQuillan on 18 May 2016, 1 September 2016, 21 December 2016 and 20 June 2017. Dr McQuillan diagnosed the plaintiff as suffering from a Depressive Disorder with associated anxiety symptoms which were mild in severity. She thought that his mood was interdependent on his pain condition and that therefore the prognosis for his mood was guarded, in that any significant change in his physical status would likely have an impact upon his mood.[168]
[168]Ex P1, pp38-39
35A report from Mr Matt Pallozzi, physiotherapist, was included in the Plaintiff’s Court Book. In a report dated 23 May 2017, Mr Pallozzi noted that the plaintiff had been attending Back in Motion Health Group since Monday, 16 March 2015, following a workplace accident. Mr Pallozzi had been treating the plaintiff since 26 July 2016 after taking over from the previous physiotherapist.
36Mr Pallozzi noted that at that time, the plaintiff’s pain limited his ability to complete household activities and activities of daily living. He thought that given the high levels of pain that the plaintiff was demonstrating, it would be difficult for the plaintiff to return to his previous employment. In particular, it was identified that the plaintiff had difficulty with tasks such as getting dressed and getting in and out of bed and cars.
37Mr Pallozzi noted that the plaintiff was currently unable to work due to his difficulty with his activities of daily living. He said that if the plaintiff was to commence work again, he would suggest a sedentary role with reduced working hours split over several days of the week to allow for sufficient rest. Mr Pallozzi supported Dr Law’s diagnosis of CRPS and stated that this condition is poorly understood in its long-term effects. Mr Pallozzi noted that the plaintiff’s improvement with treatment had been limited.[169]
[169]Ex P1, P42
38 The plaintiff was examined for medico-legal purposes by Dr Peter Blombery, consultant physician specialising in vascular disease, on 5 May 2016. In a report dated 14 June 2016, Dr Blombery made the following observations:
“EXAMINATION:
… The left knee and calf were 2° cooler than the right calf and the left knee was also somewhat red compared to the right knee. Over the left knee, he was exquisitely tender over the patella and also over the lateral and medial borders of the knee. There was allodynia over the patella and over the knee.
The left thigh was 3 cm less in circumference than the right thigh. He could only flex the left leg to 30° on request and sat with the knee at a similar angle when he was sitting. There was a significant reduction in the range of movement of the ankle. He was exquisitely tender on pressure over the lumbar spine and he could only flex the lumbar spine to 40°. There was also marked tenderness over the left hip and the greater trochanter area and down the left thigh.
OPINION:
…
On examination, there were changes in temperature and colour of the knee which he also complained of. This combination of features of ongoing pain together with autonomic disturbance is diagnostic of complex regional pain syndrome type 1 or, as it used to be known, reflex sympathetic dystrophy. He fulfils the basic criteria of the International Association of the Study of Pain for the diagnosis of complex regional pain syndrome type 1 … .
His management should essentially be that of a patient with chronic pain with multidisciplinary therapy including the use of analgesic, antidepressant, antineuropathic and other drugs, physiotherapy, behavioural therapy, occupational therapy as well as other techniques such as TENS and acupuncture … .
Mr Mehrabian has developed quite marked depression and anxiety and it is my opinion that these have tended to enhance his experience of pain. … .
His prognosis for recovery at this stage is moderate to poor. He needs to be involved in a pain management program. He may also benefit from a technique such as a ketamine infusion.
As well as the complex regional pain syndrome type 1 affecting his left knee, he has a marked pain sensitisation phenomenon affecting him at multiple sites, where there is sensitisation of pain nerve pathways, both in the periphery as well as the brain and spinal cord, such that non-painful stimuli become interpreted by the cerebral cortex as being painful. This process is also termed central sensitisation. This applies to the pain that he is experiencing elsewhere in his thigh, calf, back and other sites.”[170]
[170]Ex P1, pp45-46
39In Dr Blombery’s opinion, the plaintiff had no current capacity for employment. He thought that with treatment for his chronic pain, it was possible that the plaintiff may be able to perform some light duties in the future, but that this could take many months or years before it was possible. Dr Blombery thought that the plaintiff’s current condition was entirely due to the accident which occurred on 16 September 2014.[171]
[171]Ex P1, p47
40The plaintiff was examined for medico-legal purposes by Dr Richard Sullivan, interventional pain specialist and specialist anaesthetist, on 30 August 2019. In a report of the same date, Dr Sullivan made the following comment:
“Current treatment
He was attending physiotherapy, seeing a clinical psychologist and a psychiatrist, but these treatments have been discontinued due to lack of funding.
Pain presentation
He reports almost the entirety of his pain being in his left lower limb extending from the hip joint down to the foot and also including the groin. He reports his worst pain area as being his anterior and posterior knee extending up into the posterior thigh region. He reports his left lower limb pain has been constant. He scores between 8-9/10 on numerical rating scale. It can have a sharp and electric character.
He has associated functional limitations including an approximately 50 m walking tolerance, a sitting tolerance only in a modified fashion where he perches forward on his chair, a standing tolerance of no more than 10 to 15 minutes and with pain whilst doing so, a maximum lifting tolerance of 2 to 3 kg and a minimal capacity for carrying objects.
He cannot perform domestic activities of daily living and relies on his mother and father and brother to perform these. He is independent in personal activities of daily living, but has had to modify his approach to be able to complete these tasks. He tends to wear loose clothing and loose shoes to avoid issues relating to pain aggravation or donning and doffing clothing.
Recreational and social impact
He used to engage in household maintenance. He used to enjoy fixing his cars and attending to the cars he owned. He used to attend the gym and was a bodybuilder. He used to race cars. He can do none of these activities anymore.
Sleep and mood
He reports his sleep as being poor getting between two and three hours of effective sleep per night …
Examination
… He walked with a right favouring antalgic gait. There was a degree of swelling around the right knee joint though no evidence of effusion. Knee reflexes were intact. There was some slight colour change generally over the left lower limb. There was no substantive difference in terms of quality of hair or skin. He had reduced movements both in the knee and in the ankle of a moderate extent. Range of motion of the left knee was between 15° and 40°. He reported disturbed sensation around the anterior posterior knee and down into the calf. Blunt pressure did not yield any substantive allodynia or hyperalgesia.
I note from the associated correspondence that he has in the past had the following signs and symptoms present, swelling of the lower limb, colour change in the left lower limb, trophic changes in terms of appearance of his skin in the lower limb, reduced movements in the lower limb, allodynia and hyperalgesia around the knee joint. For example, the above was noted on an assessment by orthopaedic specialist Dr Siva Chandrasekeran [sic] on 4 June, 2016.
Summary
[The plaintiff] … is a 29-year-old race driver who last worked in garden maintenance who sustained an injury to his left knee on 30 August, 2014. Since this time, he has had chronic pain in his left lower limb especially around the left knee. Today he does not meet the diagnostic criteria for complex regional pain syndrome type I, but he appears to have historical assessments from various specialists that would be consistent with the diagnosis of complex regional pain syndrome type I. It is reasonable to state that [the plaintiff] has CRPS type I that is in [its] indolent or cold phase without substantive sympathetic tone as part of his current clinical presentation.
Regardless, he has a chronic pain condition affecting his left knee that appears to have occurred in the context of an injury sustained on 30 August, 2014.
He has substantial functional limitations consequent to this injury.”[172]
[172]P1, pp51-52
41 In Dr Sullivan’s opinion, the plaintiff is suffering from a chronic pain condition affecting the left lower limb, with historical evidence consistent with Type I CRPS, but lacking full diagnostic criteria on examination on 30 August 2014. He thought that the plaintiff’s injuries were organically-based.[173]
[173]P1, p52
42 Dr Sullivan was of the opinion that the plaintiff should have ongoing treatment on the premise that he has CRPS. He thought that he should be provided with appropriate physical and psychological treatment and support in this regard, and that he should be on appropriate medications for the management of CRPS. Dr Sullivan was of the opinion that the plaintiff should be seeing a pain physician with an interest in the management of CRPS, and that he should be considered for treatments such as neuromodulation in the form of spinal-cord stimulation for management of CRPS. He thought that the plaintiff’s injuries were materially caused by the workplace accident. He thought that the plaintiff’s condition had stabilised. He thought that the plaintiff did not have any capacity for his pre-injury employment.[174]
[174]Ex P1, p53
43The plaintiff was examined for medico-legal purposes by Dr Joseph Slesenger, specialist occupational physician, on 3 October 2019. In a report dated 30 October 2019, Dr Slesenger expressed the opinion that the plaintiff’s left knee symptoms were related to the workplace accident. He had doubts that the plaintiff’s cervical spine and lumbar spine symptoms were related to the workplace accident. He was also of the opinion that there was “in part [a] psychogenic element to his presentation and in support of this, I note limited non-organic features on evaluation”. Dr Slesenger did not address the postulated diagnosis of CRPS. I note that Dr Slesenger possesses no specialist pain-management qualifications. On this basis, I reject Dr Slesenger’s opinion as to the relationship of the plaintiff’s pain to the workplace accident. Dr Slesenger’s assessment of the plaintiff’s capacity for suitable employment will be dealt with in this judgment below.
44 The plaintiff was examined for medico-legal purposes by Dr Gregory White, consultant psychiatrist, on 18 December 2019. In a report dated 19 December 2019, Dr White concluded that the plaintiff was a man who described symptoms of a Major Depressive Disorder, single episode, characterised by low mood and other physical, psychological and social symptoms of depression. Dr White thought that the condition had developed “insidiously within a setting of chronic pain and physical disability following a workplace accident in 2014”.[175] Dr White thought that many of the plaintiff’s psychiatric symptoms alone would impact significantly upon his activities of daily living and work capacity. These symptoms included the plaintiff’s lowered mood, tearfulness, anxiety, loss of interest, tiredness, difficulties with concentration and memory and agitation. Dr White thought that the plaintiff’s psychiatric condition was permanent, given the severity of his symptoms and the fact that they have not responded to psychiatric or psychological treatment, as well as the fact that he is likely to continue indefinitely to suffer from chronic pain and physical disability.[176]
[175]Ex P1, p109
[176]Ex P1, p110
The Defendant’s medical evidence
45 The plaintiff was examined for medico-legal purposes by Mr Clive Jones, orthopaedic surgeon, on 3 December 2014 and 15 September 2015. In a report dated 1 October 2015, Mr Jones said that he was:
“… completely unable to make a diagnosis, let alone examine the knee in any meaningful way. New symptoms of low back pain are now said to be present, to further complicate the situation …
… A situation of chronic pain appears to have developed, and evaluation by a pain specialist has been arranged and hopefully will result in some insight of the underlying condition (if any) …
It is still impossible for me to say at the present time, whether the incapacity is materially contributed to by the claimed injury or not.”[177]
[177]Ex D1, p11
46In a further report dated 1 April 2016, Mr Jones expressed the opinion that footage of surveillance carried out between 28 and 31 October 2015 “shows the worker to be acting perfectly normally, without any signs of restriction”.[178]On this basis, Mr Jones expressed the opinion that the plaintiff had a capacity to perform employment as a courier/delivery driver; a despatch clerk; a sales representative; a sales assistant and/or a truck driver (HR licence required).[179] Mr Jones has not seen the plaintiff since 2015, nor provided any further report in the Defendant’s Court Book.
[178]EX D1, p15
[179]Ex D1, p16
47 Associate Professor Peter Doherty, consultant psychiatrist, examined the plaintiff on 1 July 2016. As a result of his examination of the plaintiff, in a report dated 24 July 2016, Associate Professor Doherty concluded that the plaintiff “overstates if not exaggerates significantly the level of pain and mood symptoms” from which he is suffering. Associate Professor Doherty did not set out the reasoning behind this conclusion. He was not referred to, and did not make any mention of the diagnosis of the plaintiff suffering from CRPS at that time. Associate Professor Doherty continued:
“In my opinion, no diagnosis of a psychiatric condition can be made. At the most, there may be an adjustment reaction to the injury sustained. The worker [has] now recently been referred to a psychiatrist and a psychologist. There is a significant risk of entrenchment of the worker’s sense of incapacity and impairment.”[180]
[180]Ex D1, p27
48 The plaintiff was examined for medico-legal purposes by Dr Malcolm Brown, occupational physician, on 27 September 2016. In a report of the same date, Dr Brown expressed the view that the plaintiff had suffered soft-tissue injuries to the lower back and left knee in 2014. He thought there were “psychosocial factors active” in the plaintiff’s presentation. He thought that the plaintiff’s condition related to his fall in the workplace. He expressed the opinion that the plaintiff was now physically fit for pre-injury duties and hours and that he had a capacity for suitable employment. Dr Brown expressed the view that the plaintiff had a work capacity for the job options of retail sales assistant, despatch clerk, or delivery driver of light items on full-time hours.[181]
[181]Ex D1, pp29-30
49 The plaintiff was examined in October 2017 by a Medical Panel. Following an examination by the four members of the Panel, the Panel provided an opinion that prior to the workplace accident, the plaintiff had suffered a soft-tissue injury of the neck, now resolved, a soft-tissue injury of the right shoulder, now resolved, a soft-tissue injury of the left knee, now resolved, and a soft-tissue injury of the chest wall, now resolved. The Panel was also of the opinion that the plaintiff was suffering from an Adjustment Disorder with Mixed Anxiety and Depressed Mood relevant to the claimed injuries.[182] The Panel turned its mind to whether or not the plaintiff was suffering from CRPS. On the date of the examination, there being no difference in the temperature of the plaintiff’s knees, the Panel formed the opinion that there was no demonstrated vascular hyperactivity and therefore that there were no signs of CRPS.[183]
[182]Ex D1, p32
[183]Ex D1, p36
50 The plaintiff was examined for medico-legal purposes by Mr Rodney Simm, orthopaedic surgeon, on 28 May 2019. In a report of the same date, Mr Simm concluded that the plaintiff’s lower-back pain was not clinically related to the workplace injury. He thought that there were overtly non-organic and inconsistent clinical signs associated with examination of the plaintiff’s cervical spine and right shoulder.[184] In relation to the plaintiff’s left knee, Mr Simm concluded that the plaintiff “did sustain a significant injury to the left knee, possibly a left patellar dislocation”.[185] Mr Simm concluded that the left-knee injury was the only significant physical injury likely to cause ongoing problems to the plaintiff. He noted that there were “a number of non-organic signs, which include loss of pinprick sensation from the mid thigh to the mid calf, with paradoxical extreme sensitivity when lightly pressed around the entire anterior aspect of the left knee”. He noted on examination, the “left patellar [sic] was colder than the right, but otherwise there were no vasomotor or sudomotor signs. There was no left thigh wasting to suggest chronic left knee dysfunction”.[186]
[184]Ex D1, p59
[185]Ex D1, 60
[186]Ex D1, p60
51 Mr Simm noted that “The diagnosis of CRPS Type 1 in relation to the left knee was established by a Pain Specialist and based on the Budapest Criteria for this diagnosis”.
52 Mr Simm concluded that the plaintiff had developed a chronic pain illness as a result of his workplace injury, with a focus of his symptoms in the region of the left knee. He thought that there were “some features of CRPS Type 1 in the past and currently there is mild vasomotor clinical sign of coldness”.[187] Despite this observation, Mr Simm doubted that the plaintiff had an ongoing symptomatic physical condition of the left knee, and also noted that there is no condition of the left ankle. He opined that the plaintiff had a “significant psychological disturbance associated with almost five years of chronic pain” and commented that this condition needed to be assessed by a psychiatrist.[188] Mr Simm concluded that “it may be accepted that there could be a mild physical component to his chronic pain illness because of past symptoms and signs suggestive of CRPS Type 1”.[189]
[187]Ex D1, p60
[188]Ex D1, p60
[189]Ex D1, p61
53 The plaintiff was examined for medico-legal purposes by Dr Dush Shan, consultant psychiatrist, on 11 June 2020. In a report of the same date, Dr Shan concluded, after an examination of the plaintiff, that the plaintiff does not currently have any symptoms consistent with a psychiatric diagnosis. He said that the plaintiff had become withdrawn and unsociable, has difficulty with domestic and leisure activities, but these were attributable to the physical complaint of pain. He did not think there was any psychiatric disorder which currently impacted the plaintiff’s capacity for work.[190]
[190]Ex D1, p167
Expert evidence in relation to suitable employment
54 The plaintiff was examined for medico-legal purposes and in relation to his capacity for suitable employment by Dr Joseph Slesenger, specialist occupational physician, on 3 October 2019. In his report dated 30 October 2019, Dr Slesenger concluded, after undertaking a clinical examination of the plaintiff, that he should be subject to the following physical restrictions:
“· no push, pull, carry or lift over 5 kg
· avoid squatting
· avoid kneeling
· avoid prolonged standing
· avoid walking on uneven ground.”[191]
[191]Ex P1, p65
55 As part of his opinion, Dr Slesenger considered each of the occupations which had been proposed as constituting suitable employment in the 130‑week vocational assessment report dated 1 September 2016 prepared by the defendant, namely despatch clerk, sales assistant, and delivery driver. In relation to each of those positions, Dr Slesenger’s view was as follows:
“Despatch Clerk : I am of the opinion that he could return to work in this role with the restrictions outlined above, although would have difficulty attending work on a consistent and reliable basis.
Sales Assistant (clothing, footwear and accessories ): I advise against him returning to work in this role. The job demands are likely to lie outside his capacity limits.
Delivery Driver : I advise against him returning to work in this role. The job demands are likely to lie outside his capacity limits.”[192]
[192]Ex P1, pp65-66
56 Dr Slesenger was asked to provide his opinion as to the plaintiff’s realistic capacity for work, including the number of hours per week that the plaintiff could work on a consistent, reliable and permanent basis without the risk of re‑injury when considering his age, education, skills and work experience, place of residence, medical information, any occupational rehabilitation services provided, and any effects of medication and incapacity and restrictions arising from his physical injuries.
57 In response to this question, Dr Slesenger was of the opinion that the plaintiff was unlikely to be able to return to work in a role for which he has suitable training and experience on a consistent and reliable basis, due to the variable nature of his symptoms. Dr Slesenger opined that with further treatment, it was likely that the plaintiff’s ability to adapt to the variation in his symptoms would improve. Despite this, Dr Slesenger thought that following treatment, the plaintiff would still have ongoing functional limitations. He thought that if there was an improvement after further treatment, the plaintiff may be able to return to work for no more than four hours per day, four days a week.[193]
[193]Ex P1, p66
58 The plaintiff was assessed in respect of his capacity for suitable employment by Mr Paul Hartley, senior occupational rehabilitation consultant and vocational assessor, on 18 November 2019. In a report dated 17 December 2019, Mr Hartley noted the employment options which had been put forward as suitable employment by the defendant, including sales assistant, despatch clerk, and delivery driver – van or car – and considered each one of these occupations.
59 Mr Hartley noted Dr Slesenger’s opinion in relation to each of these positions, and agreed with Dr Slesenger’s assessment of the plaintiff’s capacity to fulfil each role.
60 In relation to the role of a despatch clerk, which was the only role which Dr Slesenger thought the plaintiff may have some capacity to perform if he engaged in ongoing treatment, Mr Hartley observed that not all despatch clerk roles are “sedentary to light” and may involve physical tasks well in excess of the plaintiff’s residual functional capacity as specified by Dr Slesenger. He noted that at least one of the positions postulated as suitable for the plaintiff required the applicant to be “fit, reliable and flexible with working hours”. He also noted that two of the positions required “previous experience in transport/industry ...”.[194] In Mr Hartley’s experience and opinion, the ability to access work as a despatch clerk for only four hours per day over a four-day week was “negligible in this occupation”. On this basis, Mr Hartley concluded that the plaintiff could not fulfil the “inherent requirements of this occupation and his residual capacities are not realistically saleable/for the job Despatch clerk or indeed other clerical roles”.[195]
[194]Ex P1, p80
[195]Ex P1, p80
61 Mr Hartley concluded that there was no support in the medical opinions provided to him for the plaintiff ever returning to his pre-injury duties and hours as a garden labourer or returning to any physically demanding role. Mr Hartley thought that due to his work-related physical injuries, the plaintiff’s realistic employability is now very substantially impaired by:
“· the permanent physical implications of his injuries which include unrelenting, severe pain and limited functionality;
· his restricted capacity for work with no prolonged standing, avoid kneeling / squatting, walking on uneven ground, with load bearing and force restrictions up to 5kg only;
· his restricted capacity for only part time work (4HPD / 4DPW) and the substantial difficulty he would have accessing work in that spread of hours, especially outside access to worker’s compensation assistance;
· his likely need for a specific worksite assessment in most jobs to ensure the duties comply with restrictions, again not realistically possible outside access to an employer incentive scheme in my experience;
· his primary focus on pain and sleep deprivation that has significantly affected his ability to concentrate, remember and undertake new learning;
· social isolation which has progressively detracted from his self-confidence, self-esteem and his sense of self as a person capable of working;
· his work injury status and the financial hardship imposed on him due to work injury, which also feeds his poor self-perception and social isolation;
· his lack of an employment history and thus lack of employability or job specific skills for work within his very poor residual functional capacity (i.e. lack of transferable skills and experience); and
· the fact that he has worked less than one full day across his prospective working life of 11 years, and the substantial workplace discrimination he would face at the age of 29 years or more, lacking transferable work skills or workplace experience, seeking entry level work.”[196]
[196]Ex P1, pp83-84
62 Mr Hartley was unable to suggest any occupation for which he believes the plaintiff would be able to fulfil the inherent requirements within his residual functional capacity in a safe, consistent and reliable manner. He agreed with Dr Slesenger that –
“[The plaintiff] ... is unlikely to be able to return to work in a role for which he has suitable training and experience on a consistent and reliable basis, due to the variable nature of his symptoms ... Put simply, in my opinion and experience, … [the plaintiff’s] residual capacities are not saleable in the current employment marketplace.”[197]
[197]Ex P1, p84
63 The defendant relied upon a 130‑week vocational assessment report dated 1 September 2016, in which it was postulated that the plaintiff was capable of finding suitable employment in three roles: namely, sales assistant, despatch clerk, or delivery driver.[198] The report notes that as at the time of the assessment, the plaintiff’s treating general practitioner, Dr Aloysius Law, had reported that the plaintiff continued to remain unfit for any duties. The report noted that Associate Professor Peter Doherty, consultant psychiatrist, and Mr Clive Jones, orthopaedic surgeon, had both indicated that the plaintiff possesses the capacity to return to some form of employment. As to Mr Jones’ assessment of the plaintiff’s physical capacity for work, I note that in his report dated 1 October 2015, Mr Jones recommended that the plaintiff undergo an assessment by a pain specialist. Since Mr Jones’ report, that assessment has taken place, concluding that the plaintiff is suffering from CRPS or its sequelae.[199]
[198]Ex D1, p92
[199]Ex P1, xxx
64 Within the 130‑week vocational assessment, the physical and cognitive demands of each role were set out.
65 In relation to the sales assistant position, I note that bending, squatting or crouching movements may be required for lifting products. I note that the mental skills necessary include communication, memory, recording and calculating skills.[200]
[200]Ex D1, pp99−100
66 In relation to the role of despatch clerk, I note that bending, squatting or crouching may be required for lifting tasks and the inspection of goods. I note that mental skills include record-keeping, organisation and communication.[201]
[201]Ex D1, p100
67 In relation to the role of delivery driver, I note that the physical demands included bending frequently to facilitate loading and unloading and the need to climb up a step to enter and exit a van cab. I note that the mental skills necessary include practical, organisational, record-keeping and decision-making skills.[202]
[202]Ex D1, pp101−102
68 The plaintiff was examined for medico-legal purposes on behalf of the defendant by Dr Peter Wilkins, occupational physician, on 16 December 2019. In a report dated 19 December 2019, Dr Wilkins concluded that:
“… from a physical perspective, there is little abnormal to find in … [the plaintiff]. I have noted the possible diagnosis of complex regional pain syndrome type 1 affecting his left lower limb, but I find it strange that his pain management specialist has allegedly opined that nothing more can be done to help this …
… [The plaintiff] does not appear physically deconditioned and, provided he was able to move between sitting and standing ad lib while working and was not required to squat, in my opinion he should be capable of employment in the following tasks:
·Packer.
·Process worker (assembler/packer).
·Dispatch packer.
·Stock clerk.”[203]
[203]Ex D1, p66
69 The defendant relied upon a report from Ms Janette Ash, occupational therapist/injury management consultant, of the Recovre Group, dated 5 August 2019. That report referred to both the report of Dr Wilkins and the 130‑week vocational assessment report dated 1 September 2016. The report specifically considered the suitable roles that had been postulated by Dr Wilkins, namely packer, process worker, despatch packer, and stock clerk.
70 In its closing submissions, the defendant relied on the roles of packer, stock clerk and despatch clerk. The role of process worker was not pressed as constituting suitable employment.[204]
[204]See p13, paragraph 59, of the defendant’s written closing submission
71 In relation to the role of packer, the physical demands included constant sitting, standing and walking. Bending was depicted in the photographs which accompanied the report, and was described as incidental and momentary in duration. The photographic depiction of the bending demonstrated workers having to lean into deep tubs to replenish stock onto the conveyer belt. Carrying and lifting were both part of the role, with weights said to be 2.8 kilograms but up to 5 kilograms at times. Approximately one lift per 10‑minute period was required for a 5‑kilogram load.[205]
[205]Ex D1, pp112−113
72 As to the role of stock clerk, the physical demands included constant sitting, standing or walking. Squatting, bending and kneeling were required, although it was said that “workers can choose how to approach these tasks and the posture is typically held momentarily and on an occasional basis at most”.[206] In the particular office which was assessed, stair climbing was required. It was noted that carrying was part of the work, and workers may be required to handle and transport items routinely found within offices such as papers, binders, files and the like. It was said that each of these items were unlikely to weigh in excess of 2 to 3 kilograms. While there were no essential qualifications for the role, it was noted that “ideally workers should have some understanding or experience in warehouse or production related environments”.[207]
[206]Ex D1, p124
[207]Ex D1, pp124−125
73 As to the role of despatch packer, the physical demands noted that dynamic standing was required constantly. Some sitting was available. Walking was required on a frequent basis. Bending was depicted in the photographs that were included in the report,[208] and was said to arise once per 8 to 10 minutes on average. It was said that incidental bending was required when packing to retrieve box blanks from under a bench or when collecting product boxes from floor level.[209] Carrying loads of up to 4 kilograms at any one time was also part of the role.[210]
[208]Ex D1, p127
[209]Ex D1, p130
[210]Ex D1, p130
The Issues
The Plaintiff’s credit
74 The plaintiff’s credit was placed under sustained attack over a lengthy period of intense cross-examination. Every aspect of his account of pain, his activities of daily living, his willingness to find work, his taking of medication and his residual work capacity was scrutinised, including by reference to what his bank statements disclosed about his daily activities. Seven separate pieces of surveillance footage of the plaintiff engaged in various activities were played during cross-examination. The plaintiff was extensively questioned in relation to each piece of footage.[211]
[211]Ex 2
75 Dealing first with the surveillance, that footage showed the plaintiff engaged in various activities that were consistent with the evidence he had given about his abilities, including walking, at times slowly and with a limp and at other times, seeming to move quite freely. He was also depicted getting into and out of cars, driving and bending forward. At no stage had the plaintiff ever deposed to an inability to undertake these activities.
76 One piece of surveillance showed the plaintiff walking in what appeared to be a normal manner around an IKEA store, over quite a lengthy period of time. However, while the footage itself was taken over a lengthy period, it did not show each and every activity undertaken by the plaintiff on that outing. When cross-examined about this outing, the plaintiff explained that he had taken medication in anticipation of the outing. He also said that by way of a break from the activities of that day, he went to the café at IKEA and sat for a time. In the 2015 surveillance footage, he was shown leaning into and doing some cleaning work on a car. He explained that when he was discharged from hospital, he wore a splint on his leg under his pants and at the time that this footage was taken, by reason of the splint, he was able to carry the load on his leg completely, to support his body. This allowed him to move around the vehicle. He said that the film did not show much bending, rather: “… sort of a tilt …” He denied that the film showed him engaged in car maintenance. He defined car maintenance as jobs like oil or brake changing.
77 As to each of the other pieces of surveillance footage which showed the plaintiff walking and making movements such as getting into and out of a car relatively freely, the plaintiff himself had already given evidence that while he needs to take care getting into and out of cars, he tries his best to walk and move as normally as possible. No evidence was called to refute any of the explanations provided by the plaintiff for his appearance on the surveillance footage.
78 There was nothing shown on the surveillance which caused me to conclude that the plaintiff had been untruthful in his evidence to this Court about his physical capability. I find that the explanations he gave were not inherently improbable. I accept the truth of the evidence given by the plaintiff as to these matters.
79 As to the balance of the cross-examination of the plaintiff, I find that the evidence that he gave was consistent and provided reasonable explanations for the matters that were raised with him. As to various purchases from automotive stores, including the days where he clearly went to more than one store to make purchases, the plaintiff explained that he was getting oil and other car liquids for his father. His evidence was to the effect that he enjoys going to these stores and looking at the items that are stocked there, as he has an interest in cars. He denied assisting his father with any car repairs. No evidence to the contrary was put before the Court.
80 As to the amounts of money received into his bank account, the plaintiff explained that some were payments of an impairment benefit, some were funds received from the sale of a car and items online and some was money given to him by his father. No evidence to the contrary was put before the Court.
81 Having had the benefit of observing the plaintiff while he was giving evidence to the Court, I formed the view that he was an honest witness who appeared to be doing his best to provide accurate responses to the questions asked of him. During the lengthy cross-examination, the plaintiff understandably became irritable and argumentative at times; however, this did not detract from my overall assessment of his honesty.
82 Furthermore, I find that the plaintiff’s account of events has remained consistent throughout the period in which he has seen his treating practitioners, consulted with the medico-legal assessors and provided evidence to this Court. His account of events is corroborated by the evidence of his mother, who was not required to attend for cross-examination. In addition, the medical reports of the treating medical practitioners and medico-legal experts for the plaintiff were uniformly supportive of the plaintiff’s account of his pain and its consequences for him. The physical signs of CRPS Type 1 were noted and measured by more than one practitioner, and the physical signs of a differential use of the plaintiff’s legs – with the right leg being favoured – were measured by Dr Blombery, in the form of a lesser leg circumference on the left side when compared with the right.
83 After a consideration of all of the evidence, particularly the evidence of the plaintiff as corroborated by the evidence of his mother and the medical reports tendered on his behalf, I consider that he was a credible witness, in the sense of being a truthful person.
Compensable injury
84 The details and occurrence of the injury are not dispute.
85 Having considered all of the medical evidence from the plaintiff’s treating doctors, as well as the medico-legal experts on both sides, I am satisfied that as a result of the accident, the plaintiff suffered, inter alia, an organic injury to the function of his left leg, which led to the development of:
(a) Complex Regional Pain Syndrome (Type 1); and
(b) Central Sensitisation.
86Having considered all of the evidence regarding whether and to what degree the plaintiff is suffering from a mental or behavioural disturbance or disorder, I prefer the opinion of the plaintiff’s treating psychiatrist, Dr Katherine McQuillan, who has had the opportunity to assess the plaintiff on five occasions since 31 March 2016, on referral from Dr Symon McCallum. I note that Dr McQuillan’s opinion is supported by the medico-legal opinion of Dr Gregory White. On this basis, I am satisfied that in addition to the physical injuries referred to above, as a result of the accident, the plaintiff is suffering from a Depressive Disorder with associated anxiety symptoms.
Is the compensable injury permanent for the purposes of the Act?
87Having considered the relevant reports, and in particular the reports from Dr Law,[212] Dr McCallum,[213] Dr Blombery[214] and Dr Sullivan,[215] I find that the plaintiff is likely to suffer from the consequences of the injuries that he sustained while working for the employer for the foreseeable future. Given this, I find that those injuries are permanent for the purposes of the Act.
[212]Ex P1, p126
[213]Ex P1, p125
[214]Ex P1, p46
[215]Ex P1, p53
Conclusions as to economic loss
88 It was acknowledged on behalf of the plaintiff, that the plaintiff had a lack of relevant employment history by which the Court might compare his pre-injury earning capacity against his present capacity. Given this fact, the defendant submitted that the Court ought conclude that the most which that the plaintiff could have earned, was a rate of $18/hour, or $684 week.
89 By contrast, the plaintiff submitted that since the exercise which the Court must undertake relies upon an assessment of the plaintiff’s capacity for pre-injury employment, the relevant “without injury” earnings figure ought, at the least, to reflect the figure which the defendant argued the plaintiff could presently earn, even with his injuries – namely $34/hour, or $1,292 per week. That is because, if the plaintiff could earn that hourly rate with injury, then the Court ought have no doubt that the plaintiff would have had the capacity to earn that rate of pay, in the absence of injury. In response, the defendant argued that there was no evidence which would allow the Court to conclude that the plaintiff ever possessed either a desire or an intention to engage in full-time work prior to the accident.
90 Given the parlous state of the plaintiff’s work history, the fact that he had only worked one day in the job he had when he was injured (which was his first paid job) and his age at the time of the accident, I accept the defendant’s submission and find that I am unable to be satisfied that the plaintiff’s pre-injury earning capacity would have exceeded $18/hour.
91 The weight of the evidence satisfies me that the plaintiff has no realistic capacity to engage in his pre-injury employment.
92 As to the plaintiff’s post-injury work capacity, I note that in Richter v Driscoll,[216] the Court of Appeal held that in assessing whether a plaintiff is fit to engage in “suitable employment,” the Court is –
[216][2016] VSCA 142 at paragraph [106] (citing Cardiff Corporation v Hall [1911] 1 KB 1009, at 1020 and 1027)
“… required to consider whether the entirety of the [plaintiff’s] relevant personal circumstances—that is, her injury-caused incapacity and other relevant personal circumstances … meant that she would likely be unsuccessful in obtaining employment because she had nothing ‘merchantable’ to sell. The entirety of the worker’s relevant personal circumstances, in a case such as the present, would readily be understood to have a compounding effect.”
93 The majority of the plaintiff’s medical evidence is to the effect that the plaintiff has very little if any capacity for suitable employment. When asked whether the plaintiff had a realistic capacity for work on a consistent, reliable and permanent basis, Dr Slesenger thought that the plaintiff had no realistic capacity, due to variable nature of his symptoms. Mr Paul Hartley considered the same question and agreed with Dr Slesenger’s views, adding: “Put simply, in my opinion and experience, … [the plaintiff’s] residual capacities are not saleable in the current employment marketplace”.
94 The defendant relied upon the content of a 130-week vocational assessment and a report from the Recovre Group. These reports postulated that suitable employment for the plaintiff included working as a packer, a stock clerk or a despatch clerk. Dr Peter Wilkins, on behalf of the plaintiff, provided an opinion that the plaintiff would be capable of any of these roles. The physical and mental requirements of these roles are set out in detail above.
95 I note that each of the defendant’s experts who have expressed an opinion that the plaintiff may have a capacity for these roles in the future, make no reference to the personal circumstances which would impact on the plaintiff’s ability to participate in these roles on a consistent and reliable basis. Those personal circumstances include the plaintiff’s experience of constant and variable pain and his difficulties with concentration brought about by the impact which his injuries have on his sleep. Neither was any reference made to the adverse impact which the plaintiff’s injuries have upon his emotional state. I note that Dr White thought that on psychiatric grounds alone, the plaintiff was permanently incapacitated for suitable employment.[217] No mention or any consideration of these matters was made by the defendant’s experts in relation to this matter. Given this, I prefer the opinions of the plaintiff’s experts as to these matters, since their opinions were expressed having taken into account all of the issues which I must consider.
[217]Ex P1, p110
96 As a result, I am satisfied that the consequences of the injury to function of the plaintiff’s left leg have resulted in the plaintiff being unfit for both his pre-injury duties and indeed, for any suitable employment. Although it is unnecessary to consider the matter any further, I would have reached the same conclusion in relation to the consequences of the plaintiff’s mental disturbance or disorder. Further, I find that even if the plaintiff has a theoretical physical capacity for some employment, by reason of his personal circumstances, the plaintiff is not presently “merchantable” as a prospective employee, due to his experience of pain, the consequential difficulties with his concentration and his inability to attend at work in a reliable and consistent manner. I have already found that the injuries from which the plaintiff suffers (and therefore the ongoing effect of those injuries), are permanent for the purposes of the Act.
97 I am also required to consider issues of retraining and rehabilitation pursuant to s325(2)(g) of the Act.
98 In light of my findings as to the plaintiff’s physical impairment and his present incapacity for employment due to his experience of pain, the consequential difficulties with his concentration and his inability to attend at work in a reliable and consistent manner, I am satisfied that there is no rehabilitation or retraining that the plaintiff would be able to undertake, which would alter the fact that he has a permanent loss of earning capacity of 40 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 s325(2)(g) of the Act.
99 In light of the foregoing, I am satisfied that the consequences of the injury to the function of his left leg from which the plaintiff suffers as a result of the accident, are “serious” for the purposes of the Act.
Conclusion
100 Accordingly, I grant leave to the plaintiff to bring proceedings for damages for both pain and suffering and loss of earning capacity in respect of a serious injury to the function of his left leg, suffered in the accident on 16 September 2014.
101 I will hear the parties on the question of costs.
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