Mitchell v Transport Accident Commission

[2017] VCC 807

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No.  CI-15-04550

ADAM IAN MITCHELL	Plaintiff
v
TRANSPORT ACCIDENT COMMISSION	Defendant

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JUDGE:	HER HONOUR JUDGE K L BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:	22 and 23 May 2017
DATE OF JUDGMENT:	21 June 2017
CASE MAY BE CITED AS:	Mitchell v Transport Accident Commission
MEDIUM NEUTRAL CITATION:	[2017] VCC 807

REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT

Catchwords:             Serious injury – lumbar spine – psychiatric impairment – aggravation – Somatoform Pain Disorder – credit

Legislation Cited:     Transport Accident Act 1986, s93

Cases Cited:            Richards v Wylie (2000) 1 VR 79; Humphries & Anor v Poljak [1992] 2 VR 129; Veljanovska v Socobell Oem Pty Ltd [2005] VSCA 227; Mobilio v Balliotis [1998] 3 VR 833; Turner v Love & Transport Accident Commission (1995) 21 MVR 314; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Dordev v Cowan & Ors [2006] VSCA 254; Ifka v Shahin Enterprises Pty Ltd [2014] VSCA 8; Petkovski v Galletti [1994] 1 VR 436; Dahl v Grice [1981] VR 513

Judgment:                 Applications dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr C Harrison QC with Mr P Lamb	Zaparas Lawyers Pty Ltd
For the Defendant	Mr A Moulds QC with Ms J Clark	Solicitor to the Transport Accident Commission

HER HONOUR:

1 This is an application brought by Originating Motion by which the plaintiff applies for leave pursuant to s93(4)(d) of the Transport Accident Act 1986 (“the Act”) to bring proceedings to recover damages for injuries suffered by him arising out of a transport accident which occurred on 20 September 2008 (“the said date”).

2 Section 93(6) of the Act provides:

“A court must not give leave under sub-section (4)(d) unless it is satisfied that the injury is a serious injury.”

3       This application was initially brought pursuant to clause (a) relating solely to the lumbar spine[1] and clause (c) in relation to a psychiatric impairment diagnosed as a Somatoform/Chronic Pain Disorder. 

[1]Transcript (“T”) 2

4       Following extensive cross-examination and detailed submissions by counsel for the defendant in relation to the plaintiff’s pre-accident lumbar condition, during closing addresses, counsel for the plaintiff conceded the plaintiff’s condition was primarily psychiatric and that there is no medical support for the proposition that his lumbar condition is explicable on a purely organic basis.[2]

[2]T134

5       Whilst the application pursuant to clause (a) was not formally withdrawn, counsel for the plaintiff made very limited submissions in relation thereto and agreed the only way the plaintiff’s application could succeed would be in relation a Chronic Pain Disorder pursuant to clause (c).[3]

[3]T134

6       In forming a judgment as to whether the consequences of an injury are “serious”, the question to be asked is, can the injury, when judged by comparison with other cases in the range of possible impairments, be fairly described as “at least very considerable” and “more than significant” or “marked.”[4]

[4]see Humphries & Anor v Poljak [1992] 2 VR 129 at 140-1

7       The judgment of the Court of Appeal in Mobilio v Balliotis[5] resolved the meaning of “severe”.  Brooking JA held, having referred to the considerations mentioned in Turner v Love & Transport Accident Commission,[6] that they were not sufficient to warrant departing from the conclusion at which one would prima facie arrive, namely that the change in language from “serious” or “severe” betokens a change in meaning.  Without suggesting the use of any particular adjective to mark the distinction, his Honour said that “severe” was used in the definition as a stronger word than “serious”.

[5][1998] 3 VR 833 at 846

[6](1995) 21 MVR 314

8       Winneke P, in Mobilio,[7] agreed with Brooking JA’s reasons and further agreed with him that the word “severe”, where used in sub-paragraph (c) of ss(17) of the Act, was a word of stronger force than the word “serious” where used in the Act.[8]

[7]Mobilio v Balliotis (supra) at 833

[8]see also Phillips JA at 858 and Charles JA at 860 to 861 to similar effect

9       A Chronic Pain Syndrome (Somatoform Pain Disorder) can result in an impairment under ss(c) if a plaintiff can establish a sufficient causal link between an initial compensable physical injury and a Chronic Pain Disorder which meets the “severe” criteria of a claim under definition (c).[9]

[9]per Ashley JA in Veljanovska v Socobell Oem Pty Ltd [2005] VSCA 227

10      The plaintiff swore two affidavits and also relied on affidavits sworn by his wife, Chelsea, and mother, Irene, on 3 May 2017. 

11      The plaintiff was cross-examined.  Both parties relied on medical reports and other material which was tendered in evidence.  I have read all the tendered material.

The Plaintiff’s evidence

12      The plaintiff is presently aged thirty-five, having been born in March 1982. 

13      As a child, the plaintiff believed he was hyperactive.  His mother arranged for him to be seen by a paediatrician, and he was diagnosed with Attention Deficit Hyperactivity Disorder (“ADHD”) and prescribed Ritalin.  However, in cross-examination, the plaintiff denied he had been diagnosed with this condition.[10]

[10]T47

14      The plaintiff finished Year 10 and then started a Certificate in Automotive Mechanics at Sunshine TAFE which he completed at Newport TAFE.

15      Thereafter, the plaintiff worked as an assistant motor mechanic for about six months.  When he was about eighteen or nineteen, he did some security work for four or five months.  He then worked for a short periods over about two years for number of labour-hire firms.

16      While working at Shalders Transport, the plaintiff was loading whitegoods on 1 May 2001, when he slipped off the tray of a truck, landing on his back.  He attended Sunshine Hospital, where he was x-rayed.  He had two weeks off work and had occasional back pain thereafter.[11]

[11]T66

17      The plaintiff next worked as a casual process worker, making car detergents for about a year.  He then worked for Star Trek Express as a loader for about four months.  He picked ice for about three months, before returning to Star Trek Express.

18      The plaintiff then worked casually for Mobydisc, which provided a mobile DJ.  He did this work on and off for about two or three years, averaging about two gigs a week. 

19      The plaintiff deposed that at the same time, he also worked for his father in his auto repair shop, KAM Auto Parts (“KAM”), on average, about ten to twenty hours a week, cash in hand.  He also worked casually for about six to eight weeks for Fun City, which ran a go-kart business and operated from the same business as his father’s.  Further, he worked for Ace Go-Kart’s, fifteen to twenty hours a week for about six months.

20      On 26 August 2005, Dr Beitner at Gap Road Medical Centre, organised an x‑ray and CT scan of the plaintiff’s back.

21      For six months in 2006, the plaintiff worked with Jetta Express, dealing with luggage for customers at airports.

22      In the middle of 2006, the plaintiff started work with Scania.  His duties varied.  He started off in customer service, selling spare parts.  He went from there to part picking and then to the wrecking yard, removing engines.  There was an overhead crane for heavier tasks.  There was no driving; it was all in house work.  He had to crawl around trucks to do jobs.  The job was bearable.  He loved it, because he was doing things he loved.  He had good and bad days physically, but he coped well.  He did not have much time off.[12]

[12]T17

23      At the end of the day, the plaintiff would feel pain, but he felt it was well earned.  He would have stayed in that job had he not been let go.[13]

[13]T65

24      The plaintiff was retrenched in September 2007.  He believed there was a relationship between being put off work and his psychiatric status.  He was then “unstable to a degree”.[14]

[14]T17

25      The plaintiff next worked through a recruiting agency for a few months as an ice worker, and then went back to work with Mobydisc.

26      In April 2007, the plaintiff’s former partner told him she no longer wanted to live with him.  They separated, with her having custody of their young son.  Court proceedings followed (“the custody proceedings”). 

27      On 7 May 2007, the plaintiff’s former partner attacked him and kicked him in the groin (“the assault”).  He attended the Sunshine Hospital for treatment after the assault.

28      Prior to the assault, the plaintiff had the occasional feeling of urgency to pass urine, but this became worse thereafter.  He became very depressed as a result of the separation, and went to live with his sister in Melton.

29      The plaintiff first started hearing voices after the break up.[15]

[15]T23

30      The plaintiff attended the Primary Medical Clinic in Melton (“Primary”) from where he was referred to Graeme Miller, a psychologist at that clinic, whom he first saw on 10 July 2007, and continues to see.

31      After he was retrenched from Scania in September 2007, the plaintiff had a relapse of depression.  Graeme Miller notified the Crisis Assessment and Treatment Team (“CATT”), and the plaintiff was given a number to call if he felt bad.

32      At this time, the plaintiff’s back pain also became worse, as did his urinary difficulties.  He saw Dr Rankin at Primary, who referred him to Djerriwarrh Health Services, where he saw Mr Russell Miller, an orthopaedic surgeon, who arranged a lumbar MRI scan.

33      In November 2007, the plaintiff was assessed by psychiatrist, Dr Ibrahim, with respect to the custody proceedings.  In early 2008, the matter went to court.  Although access was agreed, the plaintiff felt very anxious and insecure.  Before the hearing, he had started to hear male voices, several times a week, telling him he was not going to get time with his son.  The voices stopped after the court case.  The plaintiff was then also having chest and breathing difficulties, and thought he might have been having a heart attack.

34      In about late 2007, the plaintiff had to leave his sister’s premises.  He lived in his car for a week or so because he had no available family to stay with.  During this period, the voices came back, telling him how useless he was.

35      Graeme Miller referred the plaintiff to Western Mental Health, where he was assessed.  He attended several times over the next few months.  He continued to hear occasional voices, and sometimes thought he would see what he thought was the top half of dead people.

36      On 29 January 2008, the plaintiff had a minor transport accident, after which his car was drivable.  He was not injured in this accident.

37      The plaintiff deposed that in about June or July 2008, he returned to work for his father at KAM, doing stocktake on a casual basis.  He continued to work for Mobydisc.

38      On his TAC Claim Form, the plaintiff set out that before the accident, he was working Friday, Saturday and Sunday.  This was both at KAM and DJing.  He was in and out of KAM right before the accident.[16]

[16]T48

39      The plaintiff declared his earnings from KAM to Newstart.[17]  He was not paid cash in hand at KAMs.  He then said he was at the start, before the accident, but it was still declared.[18] 

[17]T49

[18]T50

40      However, records from the Department of Human Services – “Personal Injury Request - Display Details of Earnings” which covered the period 2006 to 18 March 2009 detailed earnings from KAM between 30 October 2008 and 18 March 2009 of about $1,500 and not before the accident. 

41      Further, a Group Certificate from KAM Racing Family Trust for the 2008-2009 financial year set out the plaintiff worked from 30 November 2008 to 8 March 2009, earning $930 for that period. 

42      The plaintiff received a letter from the Australian Taxation Office in July 2009 advising he was not required to file a taxation return.[19]

[19]T49, also 19 June 2012

43      In August 2008, the plaintiff became more stressed.  His car was towed away in the City.  His general practitioner prescribed more Zyprexa. 

44      In about the third week of August 2008, the plaintiff felt very strange when he was driving home from a DJ gig, thinking someone must have spiked his drink.  He continued to hear male voices telling him he was useless and suggesting he should kill himself.

45      The plaintiff was cross-examined extensively about his pre-accident psychiatric and lumbar condition.

46      When asked about his memory, the plaintiff said it had been strong, “Yes” and “No” all along.  He certainly remembered how his back was before the accident and how he was going psychiatrically.  He remembered these things when he saw doctors from time to time after the accident.  He did not think he had any problems with his memory when filling out his TAC Claim Form or swearing his affidavit.[20]

[20]T13

47      Before the accident, the plaintiff’s attended Gap Road Clinic in Sunbury.  In June 2007, he commenced treatment with a doctor in Melton at the Primary Centre (“Primary”) who had worked with his mother for many years.[21]

[21]T14

48      The plaintiff agreed in October 2006, he was suffering from a level of incontinence.  He was given pelvic exercises to deal with this problem but following those exercises, the problem did not disappear entirely.[22]

[22]T15

49      Whilst the plaintiff agreed with the Primary note of 3 October 2007 that he had been incontinent for the last year, he disagreed he was having significant incontinence over the previous year.  He did not tell the doctor he was fully incontinent.  He told him he had been dribbling a little bit.[23] 

[23]T15

50      The plaintiff agreed that in June 2007, when he attended Primary, he had some suicidal ideation and he was then referred to a psychologist, Graeme Miller, in July 2007, whom he continues to see.[24]

[24]T16

51      The plaintiff agreed that when he completed K10 psychological tests for Graeme Miller, he ticked the boxes as best he could, honestly.  He agreed that in July 2007, he had what could be described as “severe mental distress”, as the K10 results indicated, and that he was at risk of suicide.[25]

[25]T16

52      The plaintiff agreed that in July 2007, he had continually poor sleep, racing disorganised thinking, and he had been prescribed Normison for sleep.  In September that year, he was still angry.  There was some improvement, but he was still unsettled at that stage.  That was the time he lost his job at Scania.[26]

[26]T17

53      To the best of the plaintiff’s knowledge, Zyprexa was prescribed by a psychiatrist at Sunshine Mental Health who he had seen by October 2007.[27]

[27]T18

54      The plaintiff agreed that when he attended Primary on 3 October 2007, he complained of lower back pain and gave a history of having fallen off a truck in around 2006-2007.  He and another worker were loading at Fantastic Furniture and he fell, and landed virtually back on a metal bar on the vehicle on his mid back.  He experienced pain later that night, and he had right leg pain and also a little bit of weakness.[28] 

[28]T19

55      In early October 2007, the plaintiff needed a Centrelink Medical Certificate to excuse him from looking for work.  He thought he was in receipt of a Newstart Allowance by that stage.[29]

[29]T19

56      The plaintiff had a lumbar CT scan on 4 October 2007, following which his doctor advised there was a protrusion involving one of the nerves running down his leg.  That explained, in the plaintiff’s mind, why he was having right leg symptoms.[30]

[30]T20

57      Dr Rankin referred the plaintiff to orthopaedic surgeon, Mr Russell Miller.  Dr Rankin dealt with the plaintiff mainly in respect of his back injury and sent him to Mr Miller to try and work out if his incontinence issue was caused by his spinal problem.[31]

[31]T20

58      The plaintiff denied he was then wearing a nappy when he attended Primary on 4 October 2007 as the notes indicated.  He was positive that was not the case.  He knew he would not have worn nappies unless he had to.[32]  He was then wearing a pad like an oversized menstrual pad.[33]  His ego was “not so burnt then”; it did not feel as bad as has been the case since.[34]

[32]T21

[33]T66

[34]T67

59      The plaintiff agreed, by 5 October 2007, Zyprexa had been increased to 10 milligrams from 5 milligrams the previous month.[35]

[35]T21

60      The plaintiff agreed that he had had episodes of back pain on and off over the previous year, aggravated by episodes of domestic violence.  He was not working at that stage and he was still being certified unfit for work by his doctor in November 2007.[36]

[36]T22

61      The plaintiff was referred to psychiatrist, Dr Ibrahim, on 9 November 2007.  He tried to get the plaintiff off Zyprexa and put him on a different drug, but the plaintiff was being prescribed that medication because he was hearing voices.[37]

[37]T22

62      The plaintiff agreed with Graeme Miller’s note of 22 October 2007, that he was becoming more stressful and he was moving out of home at that stage.[38]

[38]T23

63      The plaintiff agreed he still had back pain at the end of November 2007, when Mr Miller wrote back to Dr Rankin.  He had urinary incontinence, which was longstanding, but had improved of late.[39]

[39]T24

64      The plaintiff agreed he had discussed his back pain at Primary on 10 January 2008.  He had then been off work for three months.  He was not having physiotherapy treatment and an MRI scan was normal.  He thought he attended to discuss his back pain to prevent it from getting worse, to find out what could help, and whether or not there were things he could do to keep a job longer than a couple of weeks.  The plaintiff was then referred to Djerriwarrh Health Community Centre.[40]

[40]T24

65      The plaintiff agreed that in early 2008, he was still pretty stressed, as Graeme Miller’s notes indicated.  He thought he had stopped taking Zyprexa around that time, because it was not helping.  He was not 100 per cent sure he was again being prescribed Zyprexa by August 2008.  He could remember, however, another antidepressant being suggested, which was apparently stronger, which he took for a time.[41]

[41]T25

66      The plaintiff agreed that he complained to Mr Miller on 12 February 2008 of a sore back and groin area.  His back was then giving him a little bit of trouble.[42] On 20 February 2008, he complained of pain in his scrotum, referred from his back.[43]  In March, his back was not too bad.[44]

[42]T25

[43]T25

[44]T26

67      The plaintiff had seen and signed Dr Rankin’s Centrelink treating doctor’s report dated 29 May 2008.  The plaintiff believed this report was required by Centrelink in relation to his work capacity.  He agreed that until May 2008, he was unfit for work due to his back condition.[45]

[45]T26

68      The plaintiff agreed that he had had chronic lower back pain, the date of onset being 2005, as Dr Rankin noted in the Centrelink report.  The plaintiff thought that report looked right and it was an accurate summary that his lower back was numbing/tingling in the legs, and he had an issue with incontinence.[46] 

[46]T27

69      The plaintiff was then taking Voltaren and Panadeine Forte, and having chiropractic and some vocational rehabilitation.  All he was told by Dr Rankin was there was something going on and he was trying to get to the bottom of it.[47]

[47]T27

70      The plaintiff was aware Dr Rankin then thought that there would be no change in his condition over the following two years.  Newstart payments continued after this Centrelink assessment until after the accident.[48]  In April 2009, the plaintiff transferred to a Disability Support Pension.

[48]T34

71      The plaintiff agreed he told Graeme Miller of pretty severe stress headaches on 16 July 2008.[49]

[49]T35

72      The plaintiff agreed it was likely he was having problems with both his lower back and right leg when he saw physiotherapist, Brooke Jones, in August 2008.  His back was fairly “okay”.  There was pain, and he was having aggravation, but it was not bad, it was only light.  It was not too bad at all compared to what it could be like.[50]

[50]T28

73      The plaintiff agreed his range of back movement was significantly restricted, as Ms Jones noted but it felt normal to him.[51]  His sitting tolerance was not too bad.  He was capable of standing occasionally throughout the day.  For two-thirds of the day he would not be able to stand.  He agreed he reported during the standing test, his pain score was 7 out of 10, and that he had pretty significant pain if he had to stand up.[52]

[51]T28

[52]T29

74      The plaintiff agreed he had reduced weight bearing through the right lower limb during this examination and that he had trouble standing for any period.[53]

[53]T29

75      The plaintiff agreed he had told Ms Jones he experienced a constant lower back ache which is intermittently sharp if he moves the wrong way.  His pain was aggravated by getting into a car, sleeping, walking and standing for too long.  His symptoms were eased by ingesting analgesia regularly.[54]  He confirmed the various tolerances listed by her and agreed that he had told her he experienced pain from weight bearing on his legs, with the right being more severe than the left, and that his range of movement was pretty restricted.[55]

[54]T30

[55]T31

76      The plaintiff agreed he had a significant antalgic limp at that time.[56]  During a repetitive squat task, his right lower limb almost completely gave way beneath him.  This may still be the case.  He remembered reporting that his legs and back felt weak.  This was a “decent sort of a day”.[57]

[56]T32

[57]T33

77      The plaintiff agreed he then had a lifting limit of 2.25 kilograms.  He could sit frequently, which is still the case.  He could then stand occasionally; a lot less now.  He was then occasionally walking, but now does a lot less walking.[58]

[58]T34

78      The plaintiff agreed that when he first attended Cairnlea Clinic in Deer Park on 18 August 2008,[59] he complained of depression and bipolar, was seeing a psychiatrist, and wanted to have a general health check as he was feeling tired all the time.[60]  He attended the following day as he had run out of Zyprexa and was given a prescription.[61]

[59]T36.  Attended that clinic as it was near his mother’s home

[60]T35

[61]T36

79      The plaintiff attended Graeme Miller on 11 August 2008.  That day, the plaintiff’s car had been towed.  He had self-harmed a couple of times a couple of weeks earlier.  He was having a bad run.  He just had his son used as a bargaining tool.  He was hearing voices and having hallucinations.  He confirmed his extreme anger and agitation when his car was turned away.  He took five Zyprexa tablets to calm himself down.[62] 

[62]T36

80      Graeme Miller called the CAT Team and the plaintiff spoke to them over the phone.[63]  At that stage, the plaintiff was homeless because there was no room for him with his relatives.[64]  For six weeks he had had auditory hallucinations and vivid symptoms and felt periods of rage for no reason.[65]

[63]T36

[64]T36

[65]T38

81      A week later, on 26 August 2008, there was the incident when the plaintiff thought his drink had been spiked.  Following that incident, he agreed he regressed to infancy as a possible protective mechanism.  The voices were getting louder and clearer, telling him to kill himself.[66] 

[66]T38

82      That day, the plaintiff attended Western Health Assessment seeking help.  He was then very unwell, and had just gone through a very bad break up.  He attended that examination in jumpsuit pyjamas and behaved like a baby.[67]  Dr Rankin also gave him a further 5 milligrams of Zyprexa.[68]

[67]T39

[68]T38

83      The plaintiff agreed, on 10 September 2008, when getting out of a car, he aggravated his back pain.  He saw his doctor at Graeme Miller’s suggestion and was put on Tramal and some acute Ducene.  These sort of aggravations did not happen “overly much”.[69]

[69]T40

84      The plaintiff agreed that at that time he had suicidal ideation every two or three days or so about driving into a tree.  He was still hearing voices.[70]

[70]T40

85      By that stage, the plaintiff had seen Graeme Miller eleven times between June 2007 and September 2008, and his condition was not improving due to stresses in his life and chronic lower back pain.  The plaintiff had requested a referral to a psychiatrist at Sunshine.[71]

[71]T41

86      The plaintiff attended Cairnlea on 15 September 2008 for a Centrelink certificate from Dr Mascarenhas.  He then certified the plaintiff could not do his usual work or study for more than eight hours a week and that he was due to see a specialist for a pain management program.[72]

[72]T42

87      The plaintiff was shown the TAC Claim Form he completed on 21 August 2009, the contents of which he had sworn were true.  The plaintiff denied having ever required any treatment by a psychologist or psychiatrist pre accident.  He gave this answer because when he told a lady from the TAC about his marriage breakdown, she told him it had nothing to do with the accident and he need not put it down on the form.[73]

[73]T46, T48

88      The plaintiff agreed he answered “No” to whether, before the accident, he had suffered any problems with his lower back or pain.  He agreed this was a lie but explained that at the time, he did not think it was bad enough to worry about.  It was not “impacting him” as “bad as it has been put out to be”.[74] 

[74]T46

89      The plaintiff denied having ADHD because he had been told, as an older child, that he did not have that condition.[75] 

[75]T47

90      The plaintiff denied he did not say anything about his psychological condition.  He knew the TAC would go through everything.[76]

[76]T48

91      The plaintiff agreed he knew he would have to tell the truth about his pre-accident history to doctors he saw, for the purposes of this case.[77]

[77]T52

92      When it was suggested to the plaintiff he did not give an accurate history of his pre-injury psychiatric state to Professor Paoletti and Mr Brownbill, the plaintiff explained that he told Professor Paoletti he went a bit AWOL during the marriage break up and he did not hide the fact.[78]

[78]T54

The accident

93      On the said date, the plaintiff was involved in a transport accident when his vehicle was struck from behind by another vehicle in Moreland Road whilst he was travelling from a DJ session in North Melbourne (“the accident”).

94      Over the next few days, the plaintiff had worsening back pain.  He attended Cairnlea on 23 September 2008, where a lumbar CT scan of was arranged.  He also attended Primary the next day because of further groin pain and urinary incontinence. 

95      After the accident, the plaintiff continued to attend Cairnlea and Primary, gradually attending Cairnlea less frequently.  Dr Rankin at Primary continued to treat him before and after the accident for his psychiatric state. 

96      The plaintiff returned to Cairnlea on 26 September 2008, when he was prescribed medication.  He continued to have pain, felt unsteady on his right leg, had some neck pain, and he was very stressed.  He kept hearing the sound of the collision and feeling the impact.

97      On 29 September 2008, Graeme Miller suggested the plaintiff see a psychiatrist.  That day, he arranged for Dr Rankin to refer the plaintiff to Harvester Clinic, where he saw Dr Illesinghe on 4 December 2008.  However, the plaintiff could not could not afford to keep seeing him.

98      Dr Rankin referred the plaintiff to another psychiatrist who bulk billed.  The plaintiff then saw Dr Wisinger at Harvester Clinic, who prescribed some different medication.  The plaintiff continued to attend Cairnlea, where Dr Freyer referred him for a lumbar MRI scan, but that did not take place, as payment was not made.

99      In December 2008, the plaintiff met his current partner, Chelsea.  They started living together the following month. 

100     The plaintiff did occasional work for Mobydisc until December 2008.  That work was anywhere over Melbourne.[79]  He worked for KAM in Sunshine up to March 2009.[80]

[79]T12

[80]T62

101     In December 2008, Centrelink sent the plaintiff for a work capabilities medical assessment.  He was asked by the doctor to walk up and down a set of stairs and while doing so, the plaintiff’s right leg gave way and he fell.

102     Subsequently, the plaintiff attended Centrelink, where he was told, on the basis of that medical assessment, he could work more than fifteen hours a week.  In the circumstances, his work for Mobydisc was not enough and he had to try and get more work.

103     The plaintiff’s father offered him some further work at KAM and from December 2008, he worked there about twenty hours a week in customer service and doing deliveries.  However, this work caused the plaintiff more back pain.

104     In early 2009, the plaintiff stopped seeing Dr Wisinger because his Care Plan ran out and he had also lost confidence in him.  The plaintiff then remained in pain, frustrated and angry, and confused.

105     On 18 March 2009, as the plaintiff was leaving Centrelink, having handed in his fortnightly reported earnings, he fell when his right leg suddenly collapsed.  He had a lot of back pain, and had difficulty getting up but managed to drive home. 

106     The plaintiff then attended Cairnlea, complaining of weakness and lack of feeling in his leg.  He was given injections of Tramadol and Stemetil and was referred to Sunshine Hospital, although he ended up at Footscray, where he had a spine MRI scan and was an inpatient until 26 March 2009.  He was told the MRI was normal.[81]  Whilst at Footscray Hospital, he was incontinent of urine, and used pads.

[81]T44

107     After discharge, the plaintiff attended Mr Bonanno, at Discovery Chiropractic Clinic, about eight times until 26 August 2009.  The treatment freed up his neck, which was stiff, but did not help his back pain, which actually became worse, as did the intermittent weakness in his legs, and he could not return to work.

108     The plaintiff continued to attend Cairnlea and Graeme Miller, as well as Sunshine Hospital.  He also went to the nearby Goonawarra Medical Centre (“Goonawarra”) once.

109     Sunshine Hospital referred the plaintiff to Western Continence Centre because of his ongoing difficulty controlling passing of urine and, to a lesser extent, faeces.  Testing was carried out there in March 2010.

110     Dr Terris at Cairnlea also referred the plaintiff to Life Care Physiotherapy, but they did not think they could help.  Further, the plaintiff was also referred to Mr Lo, neurosurgeon, whom he saw once.   

111     In June 2010, Dr Andre at Cairnlea referred the plaintiff to pain management at Sunshine Hospital.  He attended in late 2010 and went about half a dozen times over a few months into early 2011.  He was given exercises, counselling and medication.

112     In about June 2011, the plaintiff started feeling weakness in his arms, worse in the right.  He attended Sunshine Hospital on 12 July 2011, where x-rays and tests were carried out. 

113     On 18 July 2011, Dr Ali at Cairnlea referred the plaintiff back to Dr Wisinger but the plaintiff did not see him, as he had lost confidence in him.  Shortly thereafter, the plaintiff stopped seeing doctors at Cairnlea because his previous treaters had left.  He continued to see Graeme Miller and other doctors at Primary.

114     In June 2011, the plaintiff moved to Diggers Rest.  He went back to Goonawarra in July 2011, and in January 2012.  A cervical and lumbar CT scan was then organised.  Since January 2012, Goonawarra has been the plaintiff’s primary medical clinic.  The plaintiff started seeing Dr Tahir at Goonawarra because the clinic was closer to his house.[82]

[82]T63

115     Further x-rays of the plaintiff’s neck and back were organised in May 2012, and he was referred to osteopath, Mr Scharita.  The plaintiff saw him for about six months, but he advised he could not help further.

116     The plaintiff had been having heart palpitations for several years and his doctor at Goonawarra referred him to the Northern Hospital, where he had a loop recorder inserted in October 2012.

117     In January 2013, the plaintiff became aware of increasing weakness and lack of feeling in his legs, and also felt lightheaded.  This caused him to fall at home on 3 March 2013.  He was admitted to The Alfred hospital between 6 and 13 March 2013, where tests were carried out.  A doctor at the hospital arranged for the plaintiff’s licence to be cancelled in April 2013.

118     Thereafter, the plaintiff had ongoing pain, numbness and weakness in his arms, legs and back, as well as headaches, ringing in his ears and flashes in front of his eyes, and occasional blackouts.

119     As the plaintiff had continuing palpitations, he was referred to Northern Hospital for an EEG in August 2013 and saw a neurologist, Dr Zavala, who arranged a full spine MRI scan in September 2013, and nerve conduction studies the following month.

120     As a result of weakness in his legs and back pain, the plaintiff started to use a four-wheel walking frame in 2012 which had a small chair.  He began to use it more often as his leg and arm weakness worsened.  In late 2013, he started to use a wheelchair, and by 2015, needed to use it all the time.

121     The plaintiff was given the wheelchair by a friend who retrieved it from his next-door neighbour, who was throwing it out.  That was roughly in about 2012-2013.[83]

[83]T56

122     The plaintiff was becoming increasingly frustrated and depressed, and his back pain in particular was worsening.  He was having arguments with his wife and drinking heavily.  Graeme Miller gave him the number of the CAT Team. 

123     In September 2014, the plaintiff became so upset he smashed a window at home.  Graeme Miller arranged for him to talk to the CAT Team and also to see Trevor Ball, a psychiatric nurse, whom the plaintiff saw about twenty times over the next year until early 2016, until he could help him no further.

124     In about 2015, the plaintiff was referred to Western Health Neurology, who referred him to Western Health Dermatology in 2015, where he attended on several occasions for treatment of rashes.

125     In June 2015, the plaintiff became very frustrated at his ongoing pain and the fact that nothing seemed to make him feel better.  He felt he wanted to hurt people.  He had mentioned this to Graeme Miller.  He was not sleeping well, and Mr Ball arranged for him to attend a sleep clinic.  At that time, the plaintiff was also waiting to go to the Western Health Chronic Pain Management Clinic.

126     As of July 2016, the plaintiff was still attending Goonawarra and occasionally, Sunbury Medical Clinic, seeing Graeme Miller on average twice a month. 

127     The plaintiff was then taking Targin 10, 5-milligram tablets four times a day, and Endone, 5-miligram, one at night.

128     The plaintiff’s worst pain then was in his lower back.  It was an ache that became sharp on average several times a day.  Standing for 5 minutes caused sharp pain.  The pain spread intermittently into his legs.  He used a wheelchair to take the strain off his back and because his legs could suddenly give way. 

129     The plaintiff also had constant neck pain which was dull, and worse if he turned his head to the right too far or too quickly.  Further, he had intermittent weakness and numbness in his arms and hands.

130     The plaintiff had virtually no control over his urine and faeces, and wore a MoliCare Super Plus pad.  The pads gave him rashes and he had had to wear them constantly over the previous few years.  He also had a rash all the time, most frequently on his back, the back of his arms and around his elbows and on the top and sides of his legs.

131     The plaintiff continued to hear voices, about every three to four weeks, particularly when he felt more frustrated or teary.  He became teary several times a week.  He imagined a voice in his head telling him he was useless or worthless and to give up.  Once a month, he felt very anxious and had a pain in his chest and found it hard to breathe.

132     The plaintiff had not had any blackouts for two years, and tried to get his licence back in 2014.  However, he did not obtain the further reports sought by VicRoads from a cardiologist and psychiatrist.

133     The plaintiff found it hard to sleep, and occasionally took sleeping tablets.  In the morning, his back and neck were stiff.  He sat on a shower chair to shower, and cleaned his teeth and shaved sitting in the shower.  He had difficulties going to the toilet.

134     Sexual relations had become increasingly infrequent, and stopped in about the end of 2014.  The plaintiff had had a major problem with erections from 2012.

135     The plaintiff no longer helped his wife with housework and domestic tasks.  He now does not cook, except very simple meals for the children.[84]

[84]T57

136     The plaintiff cannot even do basic servicing of his cars.  He was working on a Falcon ED XR6 but it was written off in the accident.  He still has three Falcons, on which his father does most of the work, and he tries to do some, like little repairs.  The cars are kept at the plaintiff’s place.[85]

[85]T63

137     Prior to the accident, the plaintiff owned motorbike dirt-bikes which he rode at Altona and on his parents’ property.  He was able to ride at his parents’ property which did not have rough surfaces and the land was flat.[86]  He was not then wearing the pads every day and he did not have a severe case of incontinence.[87]

[86]T59

[87]T61

138     Pre-accident, the plaintiff was interested in model trains.  He attended about four train shows per year.  He no longer attends shows because of his back pain, having last been in 2012, and it is now too expensive to attend.[88]  He has been unable to work on his new train layout since 2009 because of back pain.

[88]T60

139     Prior to the accident, the plaintiff enjoyed occasional camping with mates and his son.  He had been camping three times in the two years before the accident.[89]   He tried camping once in 2010 but it was too painful and he has not been since. 

[89]T60

140     The plaintiff no longer goes out as much and, when he does, his wife has to drive.  He becomes angry and frustrated with his situation.  He cannot control his moods and feels guilty he cannot do more for his wife and children.

141     The plaintiff now walks very, very minimally, around the house.[90]  He goes for a walk to the mailbox and gets some wood if his wife is at work.  He is ambulant and tries to push himself more and more to keep walking.  The longest he would have walked would be to his next-door neighbour’s place.  He did not need the wheelchair for that visit or for short trips all the time.  He needs it for longer trips and shopping.[91]  If he had to travel three blocks he would use the wheelchair or scooter.[92]

[90]T56

[91]T61

[92]T71

142     The plaintiff’s present activities with his children are really limited to reading with them and helping them with their homework.  His wife works part time, anywhere up to twelve hours a week.  He has his son every second weekend.  His daughter lives with them full time, as do the twins.[93]  

[93]T57

143     The plaintiff agreed it is a reasonably busy household and he did as much as he could.  He could not go outside and play football with his children or play softball with his daughter.  He had a quad bike sitting there he could not do anything with.  He denied his back condition, pre accident, would not have stopped him doing outdoor activities.[94]

[94]T58

144     In his May 2017 affidavit, the plaintiff deposed his symptoms have remained much the same since mid-2016, although with the Norspan patches, his pain seems duller most of the time. 

145     The plaintiff continues to have weakness and a give-way feeling in his legs which has not changed and he usually uses a wheelchair when he is away from home.  He uses a frame or stick when in the house to assist his balance and limit his back pain.  His neck pain has remained much the same.

146     The plaintiff continues to have virtually no control over his faeces and urine.  He has not heard a voice since about February 2017.

147     The plaintiff continues to be very anxious at times which he believes causes difficulty breathing about once a month and he still finds it hard to relax.  He can also become teary easily.  The melatonin seems to make him feel more tired to sleep but he continues to wake at least several times during the night.  He does not drive.

148     The plaintiff continues to see Dr Tahir at Goonawarra about once a fortnight so he can monitor his Norspan patches, which the plaintiff started in January 2017.  He also continues to see Graeme Miller about once a month.

149     The plaintiff attended the Western Health Rheumatology Clinic in August 2016 and was referred to the Royal Melbourne Genetics Clinic.  Testing there indicated the plaintiff was not suffering from Ehlers-Danlos Syndrome (“EDS”). 

150     When the plaintiff attended the Rheumatology Clinic at Western Health in 2016, he was referred to the Sleep Clinic.  It was then suggested he might have Post Orthostatic Tachycardia Syndrome (“POTS”).  He was put on melatonin to help him sleep.  He is still awaiting an assessment for POTS.

151     In mid March 2017, Dr Tahir referred the plaintiff to Precision in Sunbury for a pain management opinion for advice on the use of Norspan patches.  Following assessment there in April 2017, further hydrotherapy was suggested, the plaintiff having ceased this treatment in April 2016.  He was also referred to a specialist physiotherapist who dealt with pain management.

152     In March 2017, the plaintiff was referred to Royal Melbourne Hospital Pain Clinic for advice on rehabilitation.  He is waiting to hear from the Clinic.

153     Dr Tahir currently prescribes the plaintiff’s medication.  The plaintiff uses Norspan patches which are changed once a week, as well as melatonin to help him sleep.

154     The plaintiff’s parents arranged a motorised scooter to help him get out more, because the wheelchair can be hard to push.  The scooter has helped him get out of the house more.

155     Over the last few months, the plaintiff has been assisting his wife with a pamphlet run, and spent a few weeks delivering pamphlets to letterboxes in the local area.  While this activity increases his neck and back pain, psychologically, it helps the plaintiff feel a bit better, as he able to get out of the house and feel like he is part of the community.  After doing a run he needs to lie down and have a rest, due to his increased neck and back pain.

156     The plaintiff continues to have virtually no control over his urine and faeces.  He has not heard a voice in his head since about February 2017.

157     The plaintiff continues to be very anxious at times, which he believes causes difficulty in breathing about once a month, and he still finds it hard to relax.  He can also become teary easily.  The melatonin seems to make him feel more tired to sleep, but he continues to wake at least several times during the night. 

Lay evidence

158     The plaintiff’s wife, Chelsea, swore an affidavit in May 2017.

159     Chelsea met the plaintiff in late 2008, after he had recently been involved in an accident in which he told her he had hurt his neck and back and that his legs were still giving way.  Chelsea could recall, in late 2008, the plaintiff was working as a DJ and working in his father’s auto parts business.  Despite his neck and back pain, he was able to do some work and help out at home.

160     When they first met, the plaintiff was a warm, bubbly personality, who was fun to be around.  They shared custody of his son and she had a two-year old daughter.  Although it aggravated his pain, the plaintiff was able to play with the kids.  In 2009, they had twin daughters.

161     Chelsea has seen the plaintiff’s condition steadily decline over the last eight and a half years, and he has lost a significant amount of his independence.

162     Around the home, the plaintiff was extremely restricted.  He could do a very limited amount of housework and had problems standing for prolonged periods.  They moved in together in January 2009.  Chelsea recalled, on occasions, the plaintiff’s legs would appear to give way under him, which he told her had happened since the accident.  She confirmed his hospital attendance in March 2009.

163     The plaintiff has problems walking, with his legs giving way.  He needed to use a motorised scooter for mobility.

164     Over the last few months, whilst using the scooter, the plaintiff had assisted her to deliver pamphlets.  This activity was good for him psychologically to get out of the house because he was very isolated.

165     The plaintiff struggled standing for extended periods of time.  He could do the basic cooking, but she did all the cleaning.

166     The plaintiff is unable to do basic things like help the children get dressed or play with them outside because of his pain.  His main interaction is now reading with them at night.

167     The plaintiff has urinary and faecal incontinence, for which he wears pads.  She helps him change the pads because of his back pain.  That is a great embarrassment to him.  A number of times, he has soiled himself when they have been out.  He has difficulty showering, and she sometimes helps him.

168     Their relationship has changed significantly over the years due to plaintiff’s pain and restriction.  She spends a great deal of time being his carer, which is very upsetting for him.  Their sex life has been significantly impacted because he has difficulty getting erections, and when he can, having sex increases his pain.  It is about three years since they last had intercourse.

169     The plaintiff’s mother, Irene, swore an affidavit in May 2017.

170     Mrs Mitchell confirmed, growing up, the plaintiff had some behavioural issues, settled with prescription of Ritalin.

171     Prior to the accident, the plaintiff had some struggles with back pain, bouts of depression and a custody dispute; however, he could work, care for himself and care for his son, and she would describe him as a fairly happy character with a normal social life.  She had seen him DJing and he was really good at it.

172     Since the accident, the plaintiff’s physical and psychological health had dramatically declined and he was no longer able to care for himself independently, or for his children.  He was unable to work.

173     Chelsea and the children visit on alternate weekends.  She has seen the plaintiff’s ability to care for the children steadily decline since the accident.  On a trip last year to Geelong beach, after only an hour, the plaintiff was in so much pain he had to be taken home, and it was upsetting he could not interact with his children.

174     Prior to the accident, the plaintiff loved tinkering with cars, motorbikes, quad bikes, going go-karting and being outdoors.  He regularly went to the family property at Lal Lal and rode bikes and tinkered with cars.  Mrs Mitchell and her husband hoped the plaintiff and the grandchildren would be able to continue to enjoy their property, but that no longer happened because of the plaintiff’s pain.  The plaintiff was very upset he could not enjoy those activities.

175     When Mrs Mitchell visits the plaintiff’s house, she has seen Chelsea do most of the housework, with the plaintiff having problems with his mobility, such that he now uses a wheelchair or walking stick.  She confirmed the plaintiff attended Footscray Hospital in March 2009 when the plaintiff’s legs gave way.  This occasion was the first time she and her husband probably appreciated the significance of the accident, and the impact on the plaintiff’s functioning.

176     Last year, they got a motorised scooter to help the plaintiff get out of the house more.

177     Prior to the accident, and for a short period thereafter, the plaintiff worked in the family auto parts business in customer service and picking and packing work.  He had to stop this role because it aggravated his back pain.

178     Mrs Mitchell and her husband are keen to support the plaintiff as much as possible, but do not think he could physically do the duties he had previously performed in the business, and would struggle even with customer service.  One occasion when he visited the workshop, the plaintiff soiled himself, which was very embarrassing for him.

179     Mrs Mitchell has seen the plaintiff’s personality change from a happy go lucky person with some ups and downs, to a man who appears to be in constant pain, withdrawn, rarely goes out and is reliant on others.  No one had seemed to find the answer for his health problems and he is deeply concerned and worried about his future.

The Plaintiff’s treaters

180     The plaintiff was referred by Dr Nagpal to Graeme Miller, psychologist, for treatment of an Adjustment Disorder in July 2007.  He continued to attend thereafter for treatment in relation to depression, anxiety and chronic pain.

181     Graeme Miller has reported on a number of occasions from June 2011 and, most recently, in May 2017. 

182     In his first report, Graeme Miller described the plaintiff’s psychiatric background.  As a child, he was diagnosed with ADHD.  In the last few years, he had seen a number of psychiatrists.

183     In September 2007, the plaintiff was retrenched and reported suicidal ideation, and the CAT Team had been notified for further follow up.

184     In November 2007, the plaintiff was assessed by Dr Ibrahim, who diagnosed an Adjustment Disorder with Mixed Mood and conduct concerns.  He believed the plaintiff did not suffer from ADHD.

185     The plaintiff attended six consultations regularly, ending on 27 October 2007, and resumed on 23 January 2008, attending three times until February 2008.  He took a six-month break, returning on 19 August 2008, and had two more sessions before the transport accident.

186     During the eleven sessions before the accident, the plaintiff was in the process of formalising the separation from his fiancée in what was in an acrimonious separation and continuing legal dispute.

187     During consultations, the plaintiff reported symptoms associated with depression, anxiety, panic attacks, somatic concerns, and he was severely stressed due to his circumstances.

188     The plaintiff appeared dissociative on a couple of occasions in early 2008, when he spoke in a different tone and manner to how he usually spoke.  He had begun to avoid family and friends, preferring to be alone, and had mentioned suicidal thoughts, but no plans.

189     In November 2008, due to Graeme Miller’s concerns related to the plaintiff’s presentation, he was referred to a psychiatrist, Professor Illesinghe, on 16 December 2008, who diagnosed a Conversion Disorder.  Soon after this, the plaintiff saw another psychiatrist, Dr Wisinger, who diagnosed him with Factitious Disorder.

190     Since the accident, the plaintiff had complained of increasing back, neck pain and discomfort and concern about his incontinence.

191     In his first report of June 2011, Mr Miller stated that the plaintiff’s overall psychological condition had not improved in the time he had treated him.  His adjustment problems, with mixed depression and anxiety conditions, comorbid with his chronic pain, continued to have a significant impact on his daily functioning.  It was difficult, at that stage, to predict whether his psychological condition may improve as such.  It would depend on future stresses and events and how they impacted on his livelihood and family life.

192     Mr Miller again reported in October 2013.  He commented that it was noticeable the plaintiff’s psychological and medical conditions appeared to deteriorate over the six years of psychological treatment.

193     In his latest report of May 2017, Graeme Miller noted the plaintiff has had multiple medical and psychological issues, and presents as very complex.  He received various psychiatric diagnoses, which reveal the chronicity of his psychological and medical symptomatology.  Graeme Miller thought it could be suggested the plaintiff experiences a Chronic Adjustment Disorder with Anxiety and Depressed Mood, a Chronic Pain Disorder and unspecified Dissociative Disorder.

194     Graeme Miller concluded the plaintiff had been involved in the accident where he injured his lower back.  Clinical interview and assessments revealed a person who had experienced several adjustment issues with anxiety and depression and this, combined with his extreme pain and associated somatic symptoms, have greatly impacted on the plaintiff’s overall function and quality of life and this would inevitably result in a high degree of psychological distress.

195     Graeme Miller thought the clinical nature of the plaintiff’s psychological and medical conditions will mean he will require ongoing psychological and psychiatric treatment.  He would also benefit from mental health case management, with the aim to linking him with appropriate support services.  He thought the plaintiff was not expected to return to work due to his physical and psychological issues.

196     Graeme Miller considered, to some extent, the plaintiff’s psychological condition appears stable, but he is exceedingly vulnerable to changes to his circumstances and, potentially, could become high risk.

197     The plaintiff attended Dr Mascarenhas at Cairnlea on 23 August 2008.  He reported he had been hit by a car from behind, and then worsened his pre-existing back pain, which was now shooting down his right leg.

198     Dr Mascarenhas confirmed the plaintiff’s attendance at hospital in March 2009.  By that stage, the plaintiff had been referred to Mr Haw, orthopaedic surgeon, who had suggested conservative treatment.  The plaintiff had undergone physiotherapy, occupational therapy and seen a psychiatrist.

199     Dr Mascarenhas thought the plaintiff’s pre-existing condition is likely to have some impact on his current situation; however, the transport accident appears to be the main contributing factor.

200     Dr Tahir at Goonawarra is the plaintiff’s current general practitioner. 

201     Having been seen in October 2009 and July 2011, the plaintiff began regularly attending Goonawarra from January 2012, with Dr Tahir, his principal carer since February 2015. 

202     Dr Tahir provided a report in May 2016.  Based on the information available to him, he was not able to provide a level of impairment directly related to the accident and, at that stage, he thought the plaintiff’s future prognosis was uncertain.

203     In his May 2017 report, Dr Tahir noted the plaintiff’s pain had increased and he continued to attend for pain management and had been commenced on Norspan patches in October 2016.  He had been referred to pain specialist, Mr McCallum, who did not think he would be a candidate for a multidisciplinary pain rehabilitation program. 

204     Dr Tahir did not provide any particular opinion as to prognosis or the relationship of the plaintiff’s complaints with the accident.

Hospital attendances

205     The plaintiff was seen by an orthopaedic surgeon at Western Hospital in November 2007.  It was then noted that he presented with a rather complicated two-year history of diffuse back pain, occasional numbness and tingling in the leg, and he also reported problems with urinary incontinence.  This was a longstanding problem dating back two years, which the plaintiff felt had improved of late. 

206     The examining surgeon did not think there was a spinal basis for the plaintiff’s incontinence and suggested review by a urologist.

207     The plaintiff attended the Mental Health Clinic at Western Health on 26 August 2008, as he had been experiencing auditory hallucinations for two weeks.

Post accident

208     The plaintiff attended Western Health Emergency on 18 March 2009, complaining of increasing pain radiating down both legs, having injured his lower back in the transport accident.  Over the preceding four days, as well as increasing pain, he had numbness in the right leg with faecal incontinence.  He was an inpatient until 26 March 2009, during which time an MRI scan of the lumbar spine and a CT scan of the brain were carried out. 

209     Following an inpatient period in March 2009 at Sunshine Neurology, with multiple neurological symptoms, the final diagnosis was Somatisation Disorder.  It was noted the plaintiff had chronic back pain following the transport accident.  There was also the past history of the assault by his partner, following which he said he had been incontinent of urine.  Those symptoms had worsened following the accident. 

210     On that admission, the plaintiff reported he was intermittently incontinent of faeces and he was incontinent of urine, and used pads. 

211     The plaintiff was admitted to Western Health on 13 August 2009.  He then gave a history of urinary incontinence following a trauma.  A cystoscopy at that time showed a normal bladder, prostate and urethra.

212     The plaintiff was seen by the Western Continence Service on 3 March 2010.  It was then noted he had a complex psychiatric history, with ADHD having been diagnosed in childhood.  He reported that Bipolar Affective Disorder was diagnosed two years previously.

213     Urodynamic studies carried out in March 2010 showed normal cystometric capacity and minor detrusor overactivity, which did not cause incontinence, and it was noted voiding dysfunction was probably related to sphincter overactivity.

214     The plaintiff was seen in the Pain Management Clinic at Western Health on 18 November 2010, when he continued to experience significant lower back pain.

215     The plaintiff attended Emergency at Western Health on 16 January 2013 with back pain.  He was again seen on 5 March 2013 with back pain, when he reported two days earlier, he had fallen when his legs gave way.

216     An external x-ray of the thoracic spine on 5 March 2013 was reported as normal and further investigations of the thoracic lumbosacral spine were carried out.

217     The plaintiff was an inpatient at The Alfred hospital between 6 and 13 March 2013.  Clinically, he had inconsistent neurological findings.  No cause was identified for his spinal complaints.  A final diagnosis was made of acute/chronic back pain with inconsistent neurological findings - ? Conversion Disorder. 

218     The plaintiff was referred to the Community-Based Rehabilitation Program at Sunshine where he attended in April 2013.  He advised of a fall the previous month at home.  It was noted his licence was cancelled as at that date.

219     On 2 July 2013, the plaintiff attended Emergency at Sunshine Hospital when he again complained of lower back pain with decreased sensation in his lower limbs.  He was referred to Neurology Outpatients but he did not keep the appointment.

220     The plaintiff attended the Neurology Clinic at Northern Health on 19 August 2013 and 18 November that year. 

221     It was reported that the specialist said the plaintiff was coming for multiple neurological symptoms which he did not think seemed to be organic in nature.  It was noted that on 18 November 2013, the plaintiff came back to the clinic with a four-wheeled walking frame, but it did not really seem that he needed the frame to walk.  All investigations of the whole spine and nerve conduction tests were reported as normal.  It was noted these results made the specialist even more suspicious that the plaintiff’s problems were non-organic.  He put him on a small dose of Imipramine, and was going to review him in six months.

222     Dr Zavala, neurologist, from Northern Health, first met the plaintiff in August 2013.  His neurological examination revealed some inconsistent findings.  At some times the power seemed to be normal and at other times there was a collapsing weakness in the four limbs.  Investigations showed no significant findings.

223     A series of investigations and examinations carried out to ascertain whether the plaintiff was suffering from Ehlers-Danlos Syndrome are not relevant to this application, that diagnosis ultimately not having been made.

Medico-legal examiners

224     The plaintiff was examined by Associate Professor Paoletti, psychiatrist, in April 2011. 

225     This report was not relied on by the plaintiff, as it is somewhat outdated, but the plaintiff was cross-examined as to matters of history therein. 

226     On that examination, the plaintiff did not mention psychiatric problems in terms of past history, with Professor Paoletti noting no other serious or chronic medical problem. 

227     However, Professor Paoletti was aware that the plaintiff had been seeing Mr Miller, psychologist, since the separation from his wife.  Further, the plaintiff had seen a psychiatrist in Sunshine, to whom he had been referred by the psychologist, and told he had a manic depressive illness.  He had been given Zyprexa, an antipsychotic and mood stabiliser, by the doctor in Sunshine.

228     Professor Paoletti diagnosed a severe anxiety state with features of traffic phobia and Post Traumatic Stress Disorder (“PTSD”), which he had coded Anxiety Disorder Not Otherwise Specified.  There was a moderate depressive state which had been brought under some control but, at one stage, the plaintiff had suicidal ideation and went through a period of uncharacteristic heavy drinking. 

229     Professor Paoletti then thought the best provisional diagnosis would be Mood Disorder Not Otherwise Specified.  He considered the plaintiff had no work capacity, even on psychiatric grounds alone.

230     Mr David Kennedy, urologist, examined the plaintiff in June 2012.

231     Mr Kennedy noted before the accident, the plaintiff complained of some dribbling with micturition following an episode where he had been kicked by his ex-partner.  These symptoms subsided.  About a week after the accident, the plaintiff would wake up and find he was wet.  He saw his local doctor, who arranged for a referral for a cystoscopy at Footscray Hospital.  The plaintiff then started wearing incontinence pads, and there had been some faecal incontinence.  He attended the Sunshine Incontinence Clinic in 2010.

232     Having received the appropriate reports, Mr Kennedy thought the plaintiff had a neurogenic bladder.  He suggested a more recent report from Western Continence Service would help. 

233     In his final report, Mr Kennedy stated that all he could say was that neurodynamic studies had suggested the plaintiff had a neurogenic bladder and that could have been related to his car accident.

234     Mr David Brownbill, neurosurgeon, examined the plaintiff in May 2011. 

235     In his report, under the heading “Medical” Mr Brownbill noted the plaintiff had “been well without any past accidents, illnesses, injuries or operations.  He had been attending a psychologist since July 2007 for depression, but had not been taking any medication.”

236     Mr Brownbill noted, further, the plaintiff, since July 2007, had been seeing Mr Miller every two or three weeks, and had seen a psychiatrist twice.

237     On examination, in addition to complaints of lower lumbar and neck pain, the plaintiff described massive headaches, depression and incontinence of urine. 

238     Mr Brownbill thought the plaintiff’s demeanour during interview and some examination findings suggested some non-organic component, including varying gait patterns, a sensory disturbance pattern, facial sensation changes and apparent left hearing decrease. 

239     Mr Brownbill was then not able to explain, from a neurological point of view, the ongoing widespread symptoms and varied examination findings.  He thought the urinary complaint should be reviewed by an urologist.  He considered the plaintiff may have sustained a soft tissue strain in the accident.

240     Mr Brownbill was subsequently provided with a number of other reports from various examiners that did not lead him to change his opinion.

241     Dr Awad, neurosurgeon, examined the plaintiff in August 2016. 

242     Dr Awad noted the plaintiff’s past medical history was relatively complex, with a diagnosis of ADHD.  He also has a background of incontinence since 2006 with associated lower back pain present long term for which he had been using Celebrex but he remained employed during that time.

243     Dr Awad diagnosed aggravation of complex lower back pain syndrome, double incontinence of unknown cause and bilateral lower limb sciatica with negative radiology as to the cause.

244     Based upon the history and examination, Dr Awad could only conclude the plaintiff’s underlying chronic back pain syndrome had been aggravated and made worse by the accident.  It was difficult, however, to elicit as to whether the accident had, indeed, anything to do with his incontinence.  Noting the condition was there beforehand, it could be that this is a natural history of the condition for it to worsen.  It could equally be, however, that it was made worse by the accident.

245     Dr Awad thought the plaintiff’s current condition meant he was unable to work effectively in any way.  That was due to the fact that he could not mobilise independently outside of the house without a wheelchair, and was unable to persist in any one place without the onset of lower back pain, and had to keep moving and lying down to relieve that pain.

246     Taking into account the plaintiff’s pre-existing conditions and the exacerbation following the accident, a combination of the two has impacted on his life in such a way he is no longer able to work on a permanent basis.  Dr Awad thought the plaintiff does need further treatment, mostly psychological and pain management related with a prognosis being very poor.

247     Dr Mittal, pain physician, examined the plaintiff in July 2016.

248     Dr Mittal noted the plaintiff had seen Mr Miller, orthopaedic surgeon, in 2007, for management of a two-year history of lower back pain, multiple sensory symptoms and urinary incontinence.  She was provided with details of what she described as the plaintiff’s longstanding complex psychiatric history.

249     Lumbar examination revealed marked reduction in range of movement.  Dr Mittal was unable to ascertain whether this was secondary to pain or due to fear avoidance behaviour.  He had generalised tenderness.  There was obvious paravertebral muscle spasm.

250     Dr Mittal diagnosed central sensitisation, paravertebral muscle spasm, both in the neck and lumbar spine and facet joint pain, which was difficult to ascertain.

251     Dr Mittal was unable to explain the plaintiff’s urinary incontinence and intermittent faecal incontinence, given the MRI scan had not shown any evidence of cauda dysfunction.  Certainly, on examination of his sensory symptoms, they are not consistent with any particular dermatome and his symptoms appear to vary a lot in every presentation.

252     Dr Mittal described the plaintiff as a middle-aged man who presented with multiple sources of pain and multiple neurological symptoms.  She thought there was a component of chronic pain underlying his presentation.  However, the level of disability and extent of pain appears to be out of keeping with his underlying known pathology, which needed to be further elucidated.  She thought it also clear that there was a significant psychological and psychiatric component to the plaintiff’s overall experience of chronic pain. 

253     Dr Mittal concluded the degree of disability related to the accident-related injuries appeared significant; however, she would like to note the plaintiff’s underlying psychiatric condition had also contributed to his degree of disability.

254     Dr Michael Epstein, psychiatrist, examined the plaintiff in August 2016.  The plaintiff attended in a wheelchair. 

255     Dr Epstein was provided with extensive material as to the plaintiff’s pre-accident condition, but did not have Dr Rankin’s Centrelink report, nor that of the physiotherapist, Ms Jones, who examined the plaintiff shortly before the accident.

256     Dr Epstein thought the plaintiff presented a very challenging picture with regard to his diagnosis.  He noted the plaintiff was a man who had had major behavioural problems as a child and as a young adolescent, requiring assessment and treatment at Child and Adolescent Mental Health Services.

257     Subsequently, the plaintiff’s behaviour appeared to settle, but for some years, he had been experiencing depression, anxiety and auditory hallucinations.  He had been having psychological counselling since 2007.

258     Further, prior to the accident, the plaintiff had also developed significant back pain and urinary incontinence, which had been investigated and he had a variety of treatments for his chronic back pain.

259     Dr Epstein thought the accident appeared to have been one in which the plaintiff had no major injury but, nevertheless, appeared to have had a catastrophic effect on his physical and mental state, with a number of symptoms of traumatisation thereafter, including nightmares, flashbacks, distress, increasing concerns with regards to his own safety and of his family, hypervigilance, emotional withdrawal and a sense of bleakness.

260     Dr Epstein considered the plaintiff’s current condition prevented him from returning to work in any capacity and, taking into account his psychiatric state alone, that would also prevent him returning to work in any capacity.  He considered the prognosis for improvement was extremely poor.

261     Dr Hayman, psychiatrist, examined the plaintiff in April 2017.  The plaintiff attended the rooms in a wheelchair with his partner.

262     Dr Hayman was provided with numerous reports as to the plaintiff’s pre-accident medical and psychiatric state.  He was not provided with Dr Rankin’s May 2008 Centrelink Certificate, Brooke James physiotherapy assessment of August 2008 or Dr Mascernanhas’ medical certificate of 18 September 2008.

263     Dr Hayman noted the plaintiff had very significant prior psychiatric issues as a child.  More recently, in April 2007, he was depressed in the context of a separation and saw Graeme Miller, psychologist.

264     The plaintiff was retrenched in September 2007 and in November that year, saw a psychiatrist, Dr Ibrahim.  In the setting of a custody dispute, the plaintiff began to hear voices in his head relating to derogatory themes of not being there for his son.  Dr Hayman thought these were transient and ceased after the court case.

265     Dr Hayman noted the plaintiff heard episodic voices in late 2007, when he had financial difficulties, and he engaged briefly with the Western Mental Health Service and was prescribed Zyprexa for a time.

266     The plaintiff mentioned the incident of his car being towed away in August 2008, when he was prescribed Zyprexa again for apparent voices.  There was also an episode when he felt his drinks may have been spiked.  He heard derogatory voices saying that he was useless.

267     Dr Hayman thought this was a very complex case, noting the plaintiff’s significant prior psychological history.

268     Dr Hayman concluded that following the accident, the plaintiff had had a significant social and physical decline, despite the relatively innocuous accident.

269     Dr Hayman noted various practitioners had found no clear organic basis for the plaintiff’s symptoms and had viewed it as a conversion type somatoform picture, noting the plaintiff had continued to have pain symptomatology disproportionate to any injury sustained.

270     In Dr Hayman’s view, based on the totality of the plaintiff’s picture and the somewhat incongruous presentation at interview, his picture was largely dominated by a Somatoform Chronic Pain Disorder associated with both psychological factors and a general medical condition – a conversion type picture.  There may also have been some depressive anxiety and traumatisation features.

271     Dr Hayman thought they did not meet the criteria for a true PTSD and would be better conceptualised as a Chronic Adjustment Disorder with Depressed and Anxious Mood and features of traumatisation.  He noted there also had been episodic alcohol abuse.

272     Dr Hayman thought the plaintiff was a man with premorbid personality vulnerabilities and a tendency to cope poorly with adversity.  There appeared to be an over investment in the sick role, with a presentation of significant disability and invalidity disproportionate to any organic pathology.  He noted there appeared to be secondary gains in this role, with the plaintiff being cared for by his partner and others.  Disentangling the degree of voluntary versus involuntary contribution to this is vexed and almost impossible.  What can be said, however, is the plaintiff is now in a dependent relationship with apparent double incontinence, is largely wheelchair bound, overly identifying in the sick role.

The Defendant’s medical evidence

273     The following documents confirmed the plaintiff’s behavioural and mental problems and treatment in relation thereto as a child:

·Report from the Western Hospital Child Psychiatry Unit dated 1990

·Western Hospital Child Psychiatry Unit dated 25 August 1993

·Report of Dr Moshe Perl dated 6 October 1994

·Discharge summary of Dr Moshe Perl undated

·Report of Dr Alan Tucker dated 30 September 1993

·Report of Dr Nigel Hocking dated 14 November 1994.

274     The Gap Road notes referred to the plaintiff’s urinary problems on 5, 9 and 17 October 2006. 

275     Dr Peter Rankin referred the plaintiff to Mr Miller on 4 October 2007.  Dr Rankin advised Mr Miller the plaintiff had a year of urinary incontinence:

“He wears a nappy.  He has had every investigation under the sun on his bladder, but nobody bothered to check his spine, despite a history of falling off the back of a truck at 19 years.  Despite the conclusions of the radiographer, I feel the S1 nerve compression a likely cause and I would appreciated your opinion.” 

276     Mr Russell Miller wrote to Dr Rankin on 1 November 2007.  He noted the plaintiff’s history was somewhat unusual.  He had an episode of back pain on and off aggravated by, he thought, episodes of domestic violence.  He was not currently working.  Over the last twelve months, he had intermittent periods of urinary incontinence.  There had been faecal incontinence and no leg weakness.

277     Mr Miller noted the CT scan showed an L5-S1 disc prolapse, but it did not appear to be causing cauda equina compression.  He thought the diagnosis was far from clear.  He would do a further MRI scan of the spine, but thought it unlikely he would find a neurological basis for the incontinence.

278     Later that month, Mr Miller wrote to Dr Rankin advising the MRI revealed some minor disc bulge at L5-S1, but it appeared to be not causing neural compromise, and he doubted it was clinically significant.

279     Mr Miller did not think there was a spinal basis for the plaintiff’s incontinence and he would be reviewed by urologists to see if they could shed any further light on the matter.  For the moment, they would persist with conservative matters.

280     Dr Ibrahim, psychiatrist, wrote to Dr Nagpal in Melton in November 2007, thanking him for referring the plaintiff.

281     Dr Ibrahim noted the plaintiff described a messy divorce and many attacks with physical violence, and depressed mood.  He discussed episodes of sadness, lack of intent and motivation, lethargy and anorexia and loss of weight.  He denied any manic or hypomanic symptoms and said he was prescribed Olanzapine with no benefit.  He was seeing a psychologist.

282     Dr Ibrahim believed the plausible diagnosis would be an Adjustment Disorder with mixed mood and behaviour.  He advised the plaintiff to reduce Zyprexa and start Fluoxetine.

283     There was a note from Dr Nguyen dated 29 November 2007 to an unnamed practitioner, thanking him for seeing the plaintiff, who had fallen down a big hole at his sister’s house, resulting in a soft tissue injury of the right shoulder, wrist and ankle.

284     Dr Nguyen wrote to Dr Ibrahim on 11 December 2007, thanking him for seeing the plaintiff, who had ADHD when he was young, and wished to have that condition reassessed.

285     Dr Rankin referred the plaintiff to Djerriwarrh Health Centre on 10 January 2008. 

286     In the referral letter, Dr Rankin advised that the plaintiff had a two-year history of low back pain referred to the left leg.  He had a CT scan which showed disc prolapse, but the MRI was normal and, as expected, he advised Mr Miller that he is not planning to operate.  The plaintiff has an “unrelated problem of urinary incontinence which just confuses things.  Please fix his back so he can go back to work.”

287     Dr Rankin completed a treating doctor’s report for Centrelink on 29 May 2008.  However, he noted that condition number 1 was low back pain chronic, the onset being 2005.  He also noted there was incontinence.  The plaintiff was then taking Voltaren and Panadeine Forte, and had chiropractic treatment.

288     At that stage, Dr Rankin thought it was more than twenty-four months that the current impact of the condition on the plaintiff’s ability to function was expected to persist for.  Dr Rankin did not certify as to whether the plaintiff could currently work for eight hours or more a week.

289     Brooke James, evaluating physiotherapist from Advanced Personnel Management, examined the plaintiff on 5 August 2008. 

290     Ms James reported that the plaintiff’s range of rotation to the right and left and extension was to a quarter of the normal range, and flexion and other movements were to a quarter of that range.

291     The plaintiff reported his pain score at 7 out of 10 during the standing tolerance task.

292     The plaintiff told Ms James that he had a back injury when he fell off the back of a truck.  The symptoms settled, then he reinjured his low back in November 2007 when getting out of a four-wheel drive.  He was referred for chiropractic treatment and hydrotherapy.  He was then seeing a physiotherapist weekly, but did not feel his condition was improving.  He advised he last worked in November 2007 as a motor mechanic. 

293     At the commencement of the assessment, the plaintiff rated his low back pain at 5.5 out of 10.  There were the various tolerances and problems that the plaintiff acknowledged in cross-examination. 

294     Ms James then thought the plaintiff was capable of performing work at a sedentary level on a full-time basis in a role where minimal or no lifting was required, and the option to alternate regularly between standing and sitting positions being available would be desirable.

295     The plaintiff attended Dr Mascarenhas at Cairnlea on 18 August 2008, who then noted “has depression and bipolar - under a psychiatrist for this.  Wishes to have a general health check as he is tired all the time.”

296     Dr Mascarenhas provided a Centrelink medical certificate following examination on 15 September 2008.  Therein, he described that the condition was exacerbation of an existing condition, with the date of onset being 10 September 2008, with the plaintiff currently unfit for work for eight hours or more a week.  The condition was low back pain and the prognosis uncertain.

297     In a letter dated 28 October 2007, Graeme Miller advised Dr Nagpal that having first seen the plaintiff in July 2007, assessment revealed suicide ideation and an Adjustment Disorder.  K10 testing in June 2007 revealed severe psychological distress, extreme anxiety and depression

298     In a letter to Dr Orchard in December 2007, Graeme Miller noted that since seeing the plaintiff, his condition had not significantly improved due to a number of major adjustments in his life, and chronic back pain.

299     On examination with Graeme Miller in May 2008, the plaintiff reported in a K10 form that he felt so nervous that nothing could calm him down, he felt restless and fidgety, he felt so restless he could not sit still - all of the time.  Most of the time, he felt tired out for no good reason, he felt nervous, he felt hopeless, he felt depressed, he felt everything is an effort.

300     The plaintiff was referred to Western Health Mental Health on 19 August 2008.  The reason for referral was “? experiencing psychotic symptoms”.  ADHD was noted, as was a two-year deterioration in mental health.  For six weeks the plaintiff had experienced auditory hallucinations at times.  He had cut himself on arms two weeks ago.  He stated he feels periods of rage for no reason at times.

301     The plaintiff again attended Western Health on 26 August 2008.  He was then wearing jumpsuit pyjamas because he felt like a baby and became incontinent of urine.  He sucked a bottle to get to sleep.

302     The plaintiff advised the voices he was hearing were multiplying, and stated that he saw dead people.  He had no homicidal ideation but he was expressing a lot of anger towards others. 

303     On 10 September 2008, Western Health suggested treatment to private consulting rooms for psychiatric review. 

Post accident

304     Associate Professor Illesinghe wrote to Dr Rankin in December 2008, thanking him for referring the plaintiff.

305     When the plaintiff was seen on 4 December 2008, Professor Illesinghe noted he presented with a range of problems that included talking to himself, regressing to an infant, and also he reported hearing voices.

306     Professor Illesinghe thought the plaintiff had conduct problems from early childhood, had had a traumatic relationship breakup with ongoing unresolved issues, and his circumstances became further complicated by pain and disability from his back injury. 

307     Professor Illesinghe thought the episodes the plaintiff described could be seen as conversion episodes in response to his personal stressors and that he seemed to have derived some relief from Zyprexa, 5 milligrams daily.

308     Professor Illesinghe thought it reasonable to continue this medication and review the plaintiff further to observe whether he developed any frank psychotic symptoms.

309     The plaintiff was referred to Western Continence Services for urodynamic testing in March 2010.  The testing carried out was normal.

310     Dr Bonanno, chiropractor, first saw the plaintiff at Discover Chiropractic in March 2009.  He attended for eight treatments until August 2009.

311     The plaintiff reported he was struck in the groin two years earlier and had since been incontinent and unable to maintain an erection.

312     Mr Zavala, neurologist, wrote to Dr Lin at Goonawarra in August 2013 about the plaintiff’s problems with blacking out.  He advised he was going to refer the plaintiff for an MRI scan of the entire spine and an EEG, and some nerve conduction studies.  He was going to put him on medication for neuropathic pain.

313     Mr Zavala wrote to Dr Lin at Goonawarra in November 2013, having reviewed the plaintiff in the neurology clinic.  He advised the testing that had been carried out was normal and the results made him suspicion of non-organic problems even stronger.

314     Dr Chong, neurologist, wrote to Goonawarra, advising of the plaintiff’s attendance at General Neurology on 18 February 2014.  The normal nerve conduction study was noted, but given the plaintiff’s gait ability, Dr Chong organised a brain MRI scan.

315     Dr Chong wrote to the plaintiff’s general practitioner in October 2014, advising the brain MRI scan was essentially normal.  He advised he was not certain of the cause of the plaintiff’s headaches and thought it was a form of complex migraine.

316     Dr Chong wrote to the plaintiff’s general practitioner in June 2015, advising in relation to the plaintiff’s treatment with a pain specialist at The Alfred hospital.  He thought the plaintiff’s intermittent upper limb symptoms were probably due to ulnar entrapment neurology and organised further tests. 

317     Dr Ng, Neurology Registrar at Western Health, wrote to the plaintiff’s general practitioner on 1 September 2015, having seen the plaintiff that day in relation to his ulnar nerve complaint.

318     Dr Sharma, Dermatology Registrar, wrote to the plaintiff’s general practitioner at Cairnlea in August 2015.  He noted the plaintiff’s major issue was numbness down the left forearm as well as palpitations.

Medico-legal examiners

319     Dr Ingram, psychiatrist, first examined the plaintiff in July 2012.  He saw him again in June 2016 and provided a supplementary report in May 2017.

320     On initial examination, Dr Ingram was provided with Graeme Miller’s 2011 report.

321     Dr Ingram noted the plaintiff had been seeing a psychologist on an irregular basis, even before the accident, which he said had sometimes been helpful and in the past he had been treated with Endep and Zyprexa, but not recently.

322     On examination in June 2016, Dr Ingram felt the plaintiff had been suffering from a Chronic Adjustment Disorder with Depressed and Anxious Mood.  He thought it was likely pre-existing.  A component of it was as a secondary consequence of the accident and subsequent chronic pain and physical limitations.

323     Dr Ingram also felt the plaintiff had some mild symptoms of a PTSD, which were a primary consequence of the accident, though they were less intense than when he had seen him in 2012.  He thought a conversion illness was possible but unlikely.

324     Dr Ingram was subsequently provided with Dr Hayman’s report, Graeme Miller’s report of May 2017, physiotherapist, Brooke James’ 2008 report, and a letter from Dr Rankin dated 4 October 2007, which set out the plaintiff had a history of urinary incontinence at that stage.

325     Dr Ingram thought this remained an extremely complex case and it was very difficult to make an exact diagnosis.  Clearly, however, the plaintiff did have significant symptoms prior to the accident, not only psychologically but he had been reported by Dr Rankin to have had urinary incontinence for more than a year, and a physiotherapy assessment showed right leg weakness and problems in the lower lumbar spine.

326     Dr Ingram noted there seemed to then have been a development of progressive weakness in the legs after the accident, such that the plaintiff is currently in a wheelchair, and the development of faecal as well as urinary incontinence.  Dr Ingram noted it did not seem that there was any clear physical explanation for these symptoms.  On the other hand, there was no convincing psychological explanation for them either. 

327     Dr Ingram noted that it is generally the situation when someone is diagnosed with a conversion disorder, that there are physical symptoms with no explanation and that these symptoms come on in response to some specified stressful event.  This diagnosis, however, does not really offer any proper psychological explanation of the symptoms, but more a description of these symptoms which are unexplained biological symptoms in temporal connection to external stress.

328     Dr Ingram noted, however, there was not a close temporal relationship between these unexplained physical symptoms and the accident. 

329     When he first saw the plaintiff in 2012, there had been no mention of any faecal incontinence and the plaintiff suggested the symptoms had come on several years later.  Furthermore, on assessment in 2016, the plaintiff reported the faecal incontinence had come on only a few weeks after the accident, which is not consistent with his not mentioning the symptoms in 2012, and further highlights the problem with accepting the plaintiff’s history being reliable.

330     Dr Ingram also noted, given the reports from Ms James and Dr Rankin, that at least some of the physical symptoms started prior to the accident – namely, the urinary incontinence and leg weakness – and it is hard to see how the accident caused them.  Therefore, although the accident may have accelerated this process to some degree, and it is not clear that the symptoms did worsen in temporal relation to it, it had already started prior to the accident.  Therefore, whether the plaintiff’s symptoms have a physical or psychological basis, Dr Ingram did not feel one could say that they were caused by the accident, as the symptoms were pre-existing and only became worse some years thereafter.

331     As Dr Ingram earlier stated, although it is possible the plaintiff has a conversion reaction, this new information confirms that it is unlikely and that any psychological explanation for his physical symptoms lies with his pre-existing psychopathology, which seems to have extended back for many years.  He had no reason therefore to change his opinion.

332     Associate Professor Richard Stark, neurologist, examined the plaintiff in June 2013 and re-examined him in June 2016.  He provided a supplementary report in terms of the EDS diagnosis.

333     Professor Stark concluded there was no evidence the plaintiff’s spinal injuries had resulted in urinary and faecal incontinence.

334     In Professor Stark’s view, the findings on re-examination suggested a non-organic component contributing to the plaintiff’s apparent weakness and gait disturbance, but he accepted there may be genuine lower back pain with some restrictions arising from that. 

335     Professor Stark thought the radiology did not show any abnormalities that would explain the plaintiff’s symptoms, and likewise, the neurological examination.  In his view, these findings do raise the question of a non-organic component, and he noted the question of Somatisation Disorder had been raised in some of the documentation. 

336     Professor Stark considered the neurological prognosis should be excellent.  He concluded there was a strong likelihood there were prominent non-organic components contributing to the plaintiff’s apparent incapacity.

337     Mr Michael Dooley, orthopaedic surgeon, examined the plaintiff in July 2016.

338     Mr Dooley noted that it was evident the plaintiff suffered from low back pain prior to the accident.  He underwent CT scanning of the lumbar spine with the clinical notes of low back pain and low back pain and incontinence in 2005 and 2007.

339     Mr Dooley thought the mechanism of the accident would be consistent with the plaintiff sustaining soft tissue injuries to the cervical and lumbar regions.

340     Mr Dooley did not believe the plaintiff’s soft tissue spinal injuries had caused urinary and faecal incontinence, but he considered much of the examination findings confirmed the plaintiff’s psychological reaction to his situation, and there were no specific signs of neurological deficit.

341     Mr Dooley considered the reason for the plaintiff’s disproportionate pain on presentation is his psychological reaction to the situation.

Credit

342     As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[95]

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

[95](2010) 31 VR 1 at paragraph [12]

343     I am mindful of what was said by the Court of Appeal in Dordev v Cowan[96] in relation to the plaintiff’s credit in this type of case.  As Chernov JA said in his judgment, a plaintiff’s credibility is relevant not only to whether his evidence should be accepted but it is also relevant to the reliability of the medical evidence because the opinions of the doctors are essentially dependent on the credibility and reliability of the history given to them by the plaintiff.[97]

[96][2006] VSCA 254

[97](Supra) at paragraph [14]

344     Accordingly, in this case what appear on their face to be medico-legal opinions supportive of the plaintiff’s claim must be looked at in the light of my views as to his credit and the histories given by him.

345     The plaintiff’s failure to disclose significant pre-existing health matters adversely affects his credibility and reliability, and consequently, undermines the probative force of medical opinions that are based largely on an acceptance of his condition.

346     Counsel for the defendant submitted there were significant problems with the plaintiff’s evidence and that it should be approached with some caution.  In those circumstances, contemporaneous material should be relied upon rather than the plaintiff’s evidence which it was submitted minimised his pre-accident psychiatric and lumbar symptoms and maximised those symptoms following the accident.[98] 

[98]T79

347     In this regard, it was submitted there were scant references in the plaintiff’s first affidavit to any previous back problem.  That situation was not remedied by his second affidavit, which dealt with his current symptoms.[99]  When faced with the agreed chronology detailing his significant mental and physical problems before the accident, the plaintiff had no choice but to admit the full extent thereof.[100]  He had the chance to give that sort of candid description in his affidavits, but did not do so.[101] 

[99]T80

[100]T84

[101]T81

348     It was submitted, if the plaintiff was to be accepted “holus bolus” about an alleged worsening in his condition post accident, he would have shown a lot more candour and a lot more ability to admit pre-existing problems when it mattered.[102]

[102]T82

349     Further, it was submitted the plaintiff just cannot get around his answers in the Claim Form in which he denied any pre-existing psychiatric or lumbar problems.  His explanation about a conversation with a lady at the TAC in relation to his psychiatric history was unlikely and he had simply lied, answering “No” to the lumbar question, as he admitted.

350     It was also submitted the plaintiff’s history to Professor Paoletti and Mr Brownbill of pre-existing problems was less than full.[103] 

[103]T82

351     Counsel for the defendant submitted this was all part of a pattern of behaviour on the plaintiff’s part to minimise pre-accident and maximise post-accident problems, hence there was the need to rely on the contemporaneous material.[104]

[104]T82

352     I largely accept these criticisms of the plaintiff’s evidence and the issues raised as to the reliability of his evidence and the need, in those circumstances, to rely more heavily on contemporaneous material.

353     Whilst the plaintiff’s affidavits were very detailed, there was little mention of his pre-accident significant lumbar problems.[105]

[105]T129

354     I do not accept that the plaintiff’s admission that he lied when he denied any previous lumbar problems on his Claim Form somehow made his evidence of his conversation with the lady at the TAC credible, as his counsel submitted.[106]

[106]T127

355     Whilst counsel for the plaintiff submitted the plaintiff was being very candid when he said he was sacked from Scania because he was mentally unstable,[107] it is very clear from the plaintiffs’ treaters notes that he was having very significant psychiatric difficulties at this time.  

[107]T132

356     It is no answer to the issues raised as to the plaintiff’s inadequate histories that they could be explained on the basis the transport accident had become the most important thing to him.[108]

[108]T127

357     Further, in my view, the plaintiff has overstated the extent of his pre-accident employment to a number of examiners.  It became apparent that he had not in fact worked for Kam pre accident, if it is accepted that any income in relation to that work had been disclosed to Newstart, as the plaintiff confirmed was the case.

358     Whilst the plaintiff mentioned a number of pre-accident psychiatric problems in his first affidavit, his evidence therein as to his good level of functioning pre accident in a range of activities is clearly inaccurate when the full psychiatric picture pre accident became clear. 

359     It is difficult to accept the plaintiff was still riding dirt bikes at Lal La pre accident when he had the level of pain and restriction he described to Brooke James in August 2008.[109]

[109]T100

360     I accept the submission by counsel for the defendant that the plaintiff’s claimed level of activity and functioning pre accident cannot be reconciled with the significant health difficulties he was clearly facing at that time.  The plaintiff was painting a picture of something that just could not be right.[110]

[110]T99

361     Whilst there was lay evidence supporting the plaintiff’s complaints,[111] given the concessions made by him in cross-examination about the nature and extent of his pre-accident lumbar and psychiatric symptoms and restrictions, the usefulness of the lay evidence was negated, and counsel for the defendant cannot be criticised for not cross-examining the plaintiff’s lay witnesses.[112]

[111]T132

[112]Ifka v Shahin Enterprises Pty Ltd [2014] VSC 8

Application pursuant to clause (a) – the lumbar spine

362     There is no dispute the plaintiff suffered an aggravation of a pre-existing degenerative condition in his lumbar spine in the accident.  It seems accepted that whilst there was an initial soft tissue injury, it has long since resolved and that any ongoing problems attributed by the plaintiff to his lumbar spine are no longer organically based.[113]

[113]T111

363     As counsel for the plaintiff conceded in closing, “the emphasis is clearly on the psychiatric, and it has to be”.[114]  Counsel could not point to a medical practitioner who considered the plaintiff’s use of a wheelchair and his other significant complaints could be explained on a purely organic basis.[115]

[114]T133

[115]T134-135

364     Further, it was conceded by counsel for the plaintiff there was no medical practitioner of the view the plaintiff’s problems with incontinence were organically based and related to the accident.[116]

[116]T90

365     In these circumstances, counsel for the plaintiff agreed that the only way the plaintiff cold succeed in this case was if it was accepted that his condition was primarily psychiatric.[117]

[117]T134

366     Whilst not formally abandoning the clause (a) application, little was said by counsel for the plaintiff in relation thereto.  In those circumstances, I am not required to consider further the detailed submissions made by counsel for the defendant in relation to the clause (a) application.

367     In my view, as counsel for the defendant submitted, the plaintiff had a very significant lumbar impairment pre-accident, requiring significant painkilling medication,[118] confirmed, in particular by Ms Jones’ examination in August 2008,[119] Dr Rankin’s Centrelink report of that year[120] and Dr Masceranhas’ examination of the week prior to the accident.

[118]T112

[119]T125 - on a day the plaintiff agreed he was not too bad

[120]No other report was provided by Dr Rankin

368     Accordingly, I am not satisfied that any aggravation of his pre-accident lumbar condition is “serious” or that it is organically based.[121]

[121]T112

369     The application pursuant to clause (a) is therefore dismissed.

Psychiatric condition – application pursuant to clause (c)

370     The plaintiff’s lumbar spine injury is of relevance to his application pursuant to clause (c), as counsel for the plaintiff relied upon a severe psychological amplification of that condition in the form of a Somatoform Chronic Pain Syndrome. 

371     The level of knowledge of medico-legal examiners as to the plaintiff’s pre-accident lumbar condition is also relevant when a diagnosis of a Pain Syndrome is attributed to the accident. 

372     Whilst acknowledging the plaintiff had psychiatric problems before the accident, counsel for the plaintiff submitted that as a result of the accident, the plaintiff had lost his work capacity and had significant problems with mobility, having to use a wheelchair.  Further, as a result of the accident, he had suffered significant problems with incontinence which were psychiatrically based, as it was submitted Dr Hayman opined.[122]

[122]T90

373     Counsel for the plaintiff submitted that what was happening before the accident were flare-ups in very dramatic crisis-type environments, but the plaintiff was able to work, and now he is completely unable to and is incontinent in both regards. He has also lost the limited or fettered interaction he previously had with his children, and can just only read with them.[123]

[123]T141

374     It was submitted these consequences were “severe” on a Petkovski analysis.[124]

[124]T142

375     In response, counsel for the defendant submitted the evidence demonstrated that the plaintiff was suffering from a longstanding psychiatric disorder immediately prior to the accident and that any accident-related aggravation was not severe.

376     In this case, where there is a pre-existing psychiatric condition, I must consider what the evidence discloses as to the prior condition of the plaintiff and determine whether any additional impairment resulting from the accident is severe and permanent.[125]

[125]Petkovski v Galletti (1994) 1 VR 436

377     Counsel for the defendant submitted the plaintiff’s pre-accident psychiatric condition was not terribly different to his current presentation, although it was of a slightly different nature.[126]  The only real issue was mobility.[127]

[126]T10

[127]T11

378     It was submitted whatever the diagnosis pre-accident, the reality was the plaintiff was significantly psychiatrically compromised – consequence and impairment wise – before the accident. After the accident there was certainly no radical change in medication psychiatrically.[128]

[128]T103

379     In my view, the plaintiff was very unwell psychiatrically as at the time of the accident.  Save for his denial, he was wearing a nappy when he saw Dr Rankin in October 2007, the plaintiff agreed with the many entries in hospital and treating doctors’ notes of significant psychiatric issues, particularly in the two years leading up to the accident which were put to him in cross-examination.

380     I do not propose to repeat these matters which were the subject of extensive cross-examination which I have detailed in paragraphs 45 to 92 of my Judgment and are set out in my summaries of the treating doctors’ reports pre accident.

381     It could not be said these pre-accident psychiatric episodes were transient. They were clearly ongoing right up until the time of the accident - the car being towed and the drink spiked within a month of the accident, with contact with the CAT Team and the detailed assessment by Western Mental Health on 26 August 2008.[129]

[129]T96

382     I accept, as counsel for the defendant submitted, that in the month before the accident, the plaintiff was in a very bad way.  Suicidal ideation had been noted at that time[130] and the plaintiff had been referred to a psychiatrist before the accident.[131]

[130]T97

[131]T98

383     The plaintiff has put his case that he was the happiest man in the world before the accident and has been in trouble since.[132]  Clearly, this is not the case, when one examines the clinical notes of the numerous practitioners involved in the plaintiff’s care in the two years before the accident.  At that time, there was a very significant impairment psychiatrically, and the plaintiff was reporting many of the issues he says he now complains of.[133]

[132]T90

[133]T98

Medical evidence

384     Various practitioners found no clear organic basis for the plaintiff’s symptoms, noting the plaintiff had continued to have pain symptomatology disproportionate to any injury sustained.[134]

[134]Professor Stark, Mr Dooley and Mr Brownbill

385     Counsel for the plaintiff relied on Graeme Miller’s view that it could be suggested the plaintiff experiences a Chronic Adjustment Disorder with Anxiety and Depressed Mood, a Chronic Pain Disorder and unspecified Dissociative Disorder.

386     Whilst Graeme Miller considered the plaintiff’s condition medically and psychologically had deteriorated significantly since the accident, in my view, there has not been an aggravation that can be described as “severe”.[135]

[135]T142; Dahl v Grice [1981] VR 513 9

387     Counsel for the plaintiff relied largely upon Dr Hayman’s opinion that the plaintiff’s picture was largely dominated by a Somatoform Chronic Pain Disorder associated with both psychological factors and a general medical condition – a conversion type picture.  He thought there may also have been some depressive anxiety and traumatisation features.

388     Whilst acknowledging the plaintiff’s premorbid personality vulnerabilities, consequent to the accident, Dr Hayman thought there appeared to have been a significant decline with the spiral into his current picture of a Somatoform Disorder and Chronic Adjustment Disorder.

389 I accept however, as counsel for the defendant submitted, Dr Hayman was working largely on the fact the plaintiff’s pain came after the accident, noting the plaintiff was working two jobs at the time,[136] and that is what led him to the Somatoform Disorder diagnosis. It was entirely questionable whether Dr Hayman really knew the circumstances of the plaintiff’s back condition before the accident, and he seems to have over-estimated the plaintiff’s level of ability, which it was submitted was just not consistent with the material before the Court of a significant prior back injury.[137]

[136]T116

[137]T117

390     Significantly, Dr Hayman did not have the reports from Ms Jones of August 2008 and Dr Rankin of May 2008.

391     I accept Dr Hayman’s description of the plaintiff’s previous premorbid personality vulnerabilities grossly understated the situation.  As counsel for the defendant submitted, the plaintiff had a well-integrated psychiatric condition for which he was receiving anti-psychotic treatment before the accident.[138]

[138]T118

392     I also accept that in terms of his comments about the plaintiff taking on the invalidity role, Dr Hayman took the view that the plaintiff’s pain commenced in any meaningful sense at the time of the accident and spiralled upward, and all he had before was personality vulnerability.[139]

[139]T118

393     Whilst Dr Epstein thought, in the context of this accident, the plaintiff had also developed what appeared to be a Somatoform Symptom Disorder with Predominant Pain, formerly known as a Chronic Pain Disorder, he noted difficulties teasing out what components of the plaintiff’s current mental state relate to the accident.

394     As Dr Epstein commented, although the plaintiff regarded the accident as very significant in terms of his current condition, Dr Epstein’s impression was that the accident certainly played a part in his current condition, if not necessarily the major part.  A significant proportion of the impairment rating he gave was unrelated to the accident, in Dr Epstein’s view, that the accident certainly played a part, but not necessarily the major part.[140]

[140]T124

395     Counsel for the plaintiff relied on Dr Ingram, who felt the plaintiff had been suffering from a Chronic Adjustment Disorder with Depressed and Anxious Mood.  He thought it was likely pre-existing.  A component of it was as a secondary consequence of the accident and subsequent chronic pain and physical limitations.  He thought a conversion illness was possible but unlikely.

396     Dr Ingram was subsequently provided with Dr Hayman’s report, Graeme Miller’s report of May 2017, physiotherapist, Brooke James’ 2008 report, and a letter from Dr Rankin dated 4 October 2007, which set out the plaintiff had a history of urinary incontinence at that stage.

397     Having been provided with these important reports, Dr Ingram described the difficulties making an exact diagnosis, noting that clearly the plaintiff did have significant symptoms prior to the accident, not only psychologically but also urinary incontinence, right leg weakness and problems in the lower lumbar spine.

398     Dr Ingram did not believe there was any clear psychological explanation for the plaintiff’s increasing leg weakness and need for a wheelchair.  The diagnosis of a Conversion Disorder did not really offer any proper psychological explanation of the plaintiff’s symptoms, but more a description of these symptoms which are unexplained biological symptoms in temporal connection to external stress.

399     Dr Ingram thought the psychological explanation for the plaintiff’s physical symptoms lies with his pre-existing psychopathology, which seems to have extended back for many years.  He had no reason therefore to change his opinion.

Work

400     Whilst it was conceded the plaintiff was a fairly modest earner pre accident,[141] counsel for the plaintiff submitted the plaintiff is completely unable to work thereafter.[142]

[141]T4

[142]T141

401     However, I accept that pre accident, the plaintiff was only able to work on a negligible basis and he had a well-integrated lower back condition and psychiatric condition that affected his working capacity as counsel for the defendant submitted.[143]

[143]T8

402     The plaintiff last worked full time with Scania, having left that job in September 2007 as he was mentally unstable.

403     It became apparent when Centrelink records were examined the plaintiff that he did work for KAM until after the accident, commencing in October 2008 despite he and his mother saying he worked there pre accident.[144]

[144]T88

404     The only work the plaintiff was doing at the time of the accident was the DJing, earning about $40 per week at a time when he was quite physically restricted, only able to carry up to 2.5 kilograms, as Ms Jones noted on examination in August 2008.[145] 

[145]T86

405     I accept the submission by counsel for the defendant that this was not a situation where it could be said the plaintiff might have come good and his capacity for employment increased. He had experienced problems with his back and his mental state for nearly two years without any significant improvement.[146]  In the week before the accident, he had been certified unfit for all work.[147]

[146]T95

[147]T94

406     In my view, the plaintiff did not have any kind of realistic earning capacity pre accident with earnings of only $40 per week as the Centrelink document indicated.[148]

[148]T88

407     In these circumstances, I do not accept that any employment consequences of the plaintiff’s present psychiatric condition are severe on a Petkovski basis.

408     It was not suggested that the plaintiff’s treatment regime has changed to any significant extent since the accident.  He has continued under Graeme Miller’s care and is not currently seeing a psychiatrist.  Both before and after the accident, the plaintiff attended hospital and mental health services in times of particular crisis.  His medication regime has not changed since the accident, with a continuation of Zyprexa.[149]

[149]T103

409     Counsel for the plaintiff submitted activities of daily living were severely restricted, with the plaintiff requiring extensive assistance from his wife, and there being significant consequences in terms of his family relationships and leisure activities.[150]

[150]T5

410     I have difficulty accepting however that before the accident, the plaintiff was functioning as well as he claimed.  As counsel for the defendant submitted, the plaintiff’s affidavit evidence in this regard was irreconcilable with the medical evidence of his various problems.  He was painting a picture of something that just could not be right.[151]

[151]T99

411     As counsel for the defendant submitted, the plaintiff’s low back condition was sufficient to stop him working, and sufficient to give him the pain he described to doctors with the weakness in the right leg, problems standing for prolonged periods, and his leg quivering and difficulty with weight bearing.  It is difficult in those circumstances to accept that the plaintiff was riding dirt bikes at Lal Lal.  I do not accept that pre accident, the plaintiff was functioning well and everything was going fine in his life, as his affidavit suggests.[152]

[152]T100

412     Whilst the plaintiff did not require a wheelchair prior to the accident, at the time his mobility was significantly restricted.[153]  As Ms Jones confirmed in some detail in her August 2008 assessment – only one month before the accident – with his standing tolerance very limited, give way weakness and quivering of the right leg and problems weight bearing.

[153]T9

413     Further, the plaintiff started using the wheelchair of his own accord, not at the suggestion of any medical practitioner or health professional

414     Counsel for the plaintiff submitted that Dr Hayman had suggested a psychological link to the plaintiff’s urinary incontinence, relying on his comments I have noted at paragraphs 270-274 of my Judgment.

415     As I indicated during the hearing, I do not accept this was in fact the case.[154] 

[154]T119

416     As counsel for the defendant submitted, if Dr Hayman thought urinary incontinence was part and parcel of the Somatoform Pain Disorder, he would have made it clear.[155]

[155]T120

417     Further, I am not satisfied there has been any aggravation of the plaintiff’s urinary problems pre accident that can be described as “severe”.

418     I am also not satisfied the accident was a cause of any problems the plaintiff has with faecal incontinence.  In any event, the first mention of this issue was in March 2009, six months after the accident.  There was no further complaint noted until March 2010 when the plaintiff reported intermittent incontinence, and a further report in May 2010.  The description of faecal incontinence was at the time not that great.[156]

[156]T104

419     Taking into account all the evidence, I am not satisfied any aggravation of the plaintiff’s significant pre-existing psychiatric condition is “severe”.

420     Accordingly, the application pursuant to clause (c) is also dismissed.

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