| .. JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : MOCEVIC -v- PROK GROUP LTD [2002] WADC 247 CORAM : DEANE DCJ HEARD : 7-9, 12 AUGUST 2002 DELIVERED : 29 NOVEMBER 2002 FILE NO/S : CIV 4111 of 1997 BETWEEN : NENAD MOCEVIC Plaintiff
AND
PROK GROUP LTD
Defendant
Catchwords: Industrial accident - Assessment of damages only - Section 93D Workers Compensation and Rehabilitation Act 1981 - 43 year old labourer/factory worker - Pre-existing degenerative changes in spine - Physical, psychological and psychiatric components - Nature and extent of injury suffered by plaintiff - Capacity of plaintiff to work since date of the accident and in the future
Legislation: Workers' Compensation and Rehabilitation Act 1981
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Result:
Damages assessed in the sum of $386,360.62 plaintiff's claim allowed Representation:
Counsel:
Plaintiff : Mr J R Johnson
Defendant : Ms B A Mangan
Solicitors:
Plaintiff : Julian Johnson Lawyers
Defendant : Phillips Fox
Case(s) referred to in judgment(s):
Donjerkovic v Adelaide Steamship Industries Pty Ltd [1980] 24 SASR 347
Faslic v Milingimbi Community Inc (1982) 150 CLR 345
Fontaine v Quality Platers (1994) 12 WAR 71
Fox v Wood (1981) 148 CLR 438
Ivkovic v Rinaldi [1980] 25 SASR 516
Jongen v CSR (1992) A Tort Rep 91-192
Kalavrouziotis v Howel & Anor, unreported; FCt SCt of WA; Library No 980219S; 1 May 1998
Watts v Turpin [1999] WASCA 216
Case(s) also cited:
Bonnington Castings Ltd v Wardlaw [1956] AC 613
Bowen v Tutte (1990) A Tort Rep 81-043
Kocak v Saligari, unreported; DCt of WA; Library No 4432; 23 May 1995
Malec v J C Hutton Pty Ltd (1990) 169 CLR 638
Munce v Vinidex Tubemakers Pty Ltd (1974) NSWLR 235
Purkess v Crittenden (1965) 114 CLR 164
Russell v Ciesielski, unreported, FCt SCt of WA; Library No 980222; 1 May 1998
Thomas v O'Shea (1989) A Tort Rep 80-251
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Ulrich v Australian Poultry Ltd, unreported; DCt of WA; Library No 3914; 22 December 1993
Watts v Rake (1960) 108 CLR 158
Western Australia v Watson [1990] WAR 248
Wright v Shire of Albany (1993) A Tort Rep 81-239
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Introduction 1 In this matter liability is admitted but quantum is in issue. The trial therefore concerns assessment of damages only. It is common ground that it is governed by the provisions of s 93D and s 93E of the Workers' Compensation and Rehabilitation Act 1991 ("the Act") which sets a threshold in relation to the assessment of damages. In order to obtain an award of damages the plaintiff must establish a future pecuniary loss in excess of $130,609 (being the amount applicable at the time of trial). Section 93D provides that damages can only be awarded if the disability is a serious one as defined in s 93D(2) of the Act. This will be so if, and only if: 2 The matter comes before this Court by way of a retrial. It was originally heard in the District Court in March of 1999 with the judgment being delivered in July of that year. An appeal was heard before the Full Court in March 2000 and their judgment ordering the matter to be remitted to the District Court for retrial was delivered on 26 February 2001. The plaintiff claims for general damages, past loss of earning capacity and superannuation benefits with interest on past loss. He also claims for future loss of earning capacity and superannuation as well as the costs of future medical treatment. It will therefore be necessary to decide, among other matters, the nature of any injury sustained by the plaintiff and the consequences, if any, that the injury had relevant to the plaintiff's loss of earning capacity and the other heads of damages claimed. 3 The plaintiff's case is essentially that he is permanently and totally incapacitated for work as a consequence of his injuries and that given the time between the date of the accident and trial, on the basis of medical opinion available, there is no likelihood of the plaintiff's condition improving in the future such that he would be able to undertake any form of employment. It is further said that even if the plaintiff had not been involved in the work accident, he would have been able to continue to carry out his employment albeit that he may have developed symptoms
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associated with a pre-existing degeneration from which he suffered. It is argued that even if such symptomatology had manifested itself this would not have occurred for some time into the future and that even then one could not say with any degree of certainty whether such symptomatology would in the end have impacted upon the plaintiff's capacity to carry out his employment. 4 On 15 August 2001 the plaintiff was granted leave to amend the statement of claim to include among the plaintiff's injuries and symptoms an allegation of a secondary psychiatric illness behaviour condition of unconscious effect resulting from the plaintiff's physical injuries, being pain to the lower back and an annular tear to the left L4/5. In addition the plaintiff asserts he is suffering tenderness to the spinous processes with spasms to L5/S1, pain to the buttocks, legs and hips as well as paraesthesia to the left lateral thigh. It is further pleaded that the plaintiff's perception of his pain and disability is disproportionately exaggerated as a result of his psychiatric disability suffered secondarily as a consequence of his physical injuries. This perception is said to be of unconscious origin and unlikely to improve or resolve. 5 The defendant's response to the claim is that the injury the plaintiff sustained at work is not the cause of his current condition and that if the plaintiff has sustained any loss (which is denied) then it is entirely due to pre-existing degenerative changes in the plaintiff's lumbar spine and/or an injury sustained to the plaintiff's lower back in a motor vehicle accident on 15 May 1996.
The plaintiff's personal circumstances, work history and circumstances of the accident 6 The plaintiff is now 43 years of age, having been born in Bosnia on 21 February 1959. He is married with two teenage children. The plaintiff received his education in Bosnia, leaving school at 19 years of age, having completed 12 years of schooling. He then attended a college which, as I understood it, was somewhat similar to TAFE, with a view to training in some form of clerical or administration work. He remained there for two years but was not successful in passing the course as he completed only two of the necessary 12 units successfully. His evidence was that he did not work particularly hard at his studies during this period but remained at the college because he had an interest in a female student with whom he was studying. The plaintiff then carried out 12 months compulsory national service in the army where he learnt first aid. After leaving the army, with some financial assistance from his father, the plaintiff opened
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a bakery business after completing a three month bakery course. He was not directly responsible for breadmaking but employed an experienced assistant and a number of other persons to assist him in this regard. The plaintiff was mainly concerned with carrying out bread deliveries between 6.00 am and 11.00 am each day whilst his wife was responsible for the bookkeeping of the business. 7 When civil war broke out in Bosnia in about April 1992 the plaintiff and his family came to Australia as refugees. They arrived in Melbourne and then almost immediately travelled to Sydney where apparently the plaintiff's wife had an uncle. At this stage the plaintiff was 33 years old and spoke no English. For this reason on arrival in Sydney he attempted to enrol in a course in order to learn English but joined an eight month waiting list to do so. At some point in time the plaintiff's younger brother also came to Australia and joined him. During this period the plaintiff said that his priority was to learn English and although there seems to have been some limited attempts on his part to find employment in Sydney, his evidence was to the effect that this was rendered particularly difficult because of his lack of English. 8 The plaintiff arrived in Perth with his family in August 1993 to join his younger brother and also because he had been told that it was considerably easier to get into an English language course in Perth. He also obtained both a car and truck licence after his arrival in Perth. The plaintiff undertook what appears to be a fairly intensive English language course over a period of about a year after he came to Perth. This course, which he did with his wife, ran between 9.00 am and approximately 3.00 pm five days per week and during this period the plaintiff was receiving social security benefits. At the conclusion of the course the plaintiff's English was, he claimed, still relatively basic but be began to search for employment as a labourer. He did this through Centrelink and he said he also had the assistance of a friend who was a pensioner and on occasion they would go door to door seeking work. Another friend who was more proficient in the English language assisted the plaintiff to fill out job application forms. 9 In July 1995 the plaintiff obtained employment with the defendant through a friend who already worked within the organisation. His evidence, which was not contradicted, was that it was his intention to work until aged 65 years. Prior to commencing this job the plaintiff underwent a medical examination carried out by Dr Cordova, a medical practitioner who acted as the company's medical officer, and passed it without difficulty. The plaintiff's evidence was that to this point in time
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he had never suffered problems with his back, neck or legs. The plaintiff worked as a labourer in the assembly area which was physically hard work. His recollection was he worked 40 hours a week but would also carry out up to 15 hours overtime per week on Saturdays and occasionally on Sundays. 10 On 17 November 1995, the date of the accident, the plaintiff attended work as usual. Initially he worked outside the factory packing metal rolls for export but about 10.30 am he was requested to carry out some work in the assembly area within the factory. He placed a component, being a metal tube with a bar inside it in a horizontal position, into a press machine. The ends of this component were fixed into two V-shaped clips at either end and, as I understand it, the plaintiff then ran this cylinder against another separate component, being a wheel type structure, to ensure that the cylinder moved smoothly and its bearings worked. He was satisfied that the component was correctly made and then attempted to remove it from its horizontal position within the press, but it appeared to be stuck and he could not dislodge it. The third time he attempted to remove the component, the plaintiff said he put both his hands under the cylinder and pulled it up with a reasonable degree of force using his arm muscles. This dislodged the component but the action caused the plaintiff to stagger or go backwards and hit his right buttock area on the corner of a press machine. He said there was grease on the floor and that in an unbalanced state both his legs went from under him and he completely lost his balance and fell on his buttocks with considerable force on to the concrete floor. He landed on the floor with the cylinder in his hands. This cylinder was about 70 cm long, 10 cm in diameter and weighed about 5 or 6 kg. 11 On hitting the ground the plaintiff initially felt pain only in his right buttock region and he managed to get up with some assistance from workmates. He continued to work, although experiencing pain in his right buttock, but after about 10 minutes he noted numbness in his back and so he ceased work. He was taken to see Dr Cordova complaining of these symptoms but denying back pain at that point. Dr Cordova ordered x-rays and a CT scan that day. After reviewing them he certified the plaintiff unfit for work for one week and prescribed Panadeine Forte. The plaintiff returned home that evening, being a Friday, and went to bed fairly early. He awoke, however, about 3.00 am experiencing a strong pain in his back which did not abate over the weekend. As a result the plaintiff returned to see Dr Cordova on Monday complaining of back pain and some minor pain in his right leg and buttock. After an examination the plaintiff was admitted to the Mount Hospital where he remained for approximately
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10 days under the care of Mr Slinger. During that period of time the plaintiff said he continued to experience strong back pain at the belt line region in the centre of his back. Treatment in the form of Panadeine Forte, hot and cold packs as well as morphine injections were of no assistance and so the plaintiff said he was discharged from hospital having experienced no improvement in his condition. 12 Thereafter he underwent some physiotherapy and continued to see Dr Cordova after having his claim for workers' compensation payments accepted. He had been advised by both Dr Cordova and Mr Slinger that he should undergo an exercise programme and continue to have physiotherapy. In January of 1996 Dr Cordova noted some pain radiating into the plaintiff's right leg and occasional numbness in his left thigh. However, Dr Cordova at that stage considered that the plaintiff's pain was somewhat out of proportion to what he would expect, given the findings on x-ray and MRI scans. 13 In February 1996 the plaintiff was considered fit to undertake a work trial with a view to returning to employment with the defendant. Dr Cordova encouraged the plaintiff in this regard advising that he try light duties avoiding prolonged sitting or standing and any heavy lifting. Despite Dr Cordova's opinion and encouragement the plaintiff disagreed that he was fit to undertake such a work trial, due to pain he was suffering, particularly in his back. The plaintiff returned to light duties on 28 February 1996 and worked between 9.00 am and 9.45 am when his pain state was such that he said he needed to return home. The following day he attempted to return to work again in the morning but was able to undertake only about one and a half hours work. The work trial on those occasions consisted of the plaintiff sitting at a press machine in the storeroom using his legs to press a foot pedal relevant to assembling small components. He claimed that the work trial was rendered more problematic because it entailed him driving on a round trip of about one and a half hours and this added to his back pain. 14 On 20 March 1996 the plaintiff attempted another work trial with the defendant but once more had to return home due to his pain state after about 25 minutes. 15 Although the plaintiff was continuing to consult Dr Cordova during this period, in March 1996 he consulted a new general practitioner, Dr Edwardes, because he felt that Dr Cordova was more focused on the plaintiff's return to work than on curing the plaintiff's back pain. It would appear that the plaintiff was uncomfortable with Dr Cordova's view that
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there did not seem to be a physical cause for the plaintiff's ongoing pain. At his first consultation with Dr Edwardes on 27 March 1996 the plaintiff was certified unfit for work and was referred to Dr Hamzah, a pain specialist, relevant to his back pain. According to the plaintiff's evidence, Dr Hamzah administered a dorsal ramus block to the plaintiff's back and although the procedure was painful it had excellent results in that the plaintiff made a recovery to the point where he had no back pain, although he still had some problem with the numbness in his left leg. To that stage he had been using a walking stick but found there was no need to do so after the injection. The plaintiff's recollection was that although he felt very good and capable of undertaking work, Dr Hamzah warned the plaintiff to be careful and avoid twisting, bending or any physically exerting activities. This, as I understand it, is why the plaintiff took the view that he should not attempt a return to work with the defendant. The first injection administered by Dr Hamzah occurred on 19 April 1996. On 15 May 1996 the plaintiff was involved in a motor vehicle accident on the Mitchell Freeway when another motorist drove into the rear of the plaintiff's vehicle. The plaintiff said that at first he experienced no symptoms as a result of the impact but later that day he began vomiting and out of concern he attended a medical centre in Padbury. He was examined by a medical practitioner but given no formal treatment. A few days later he noticed a pain at the base of the rear of his neck which persisted for approximately five weeks but which has not returned since. He did not agree that the motor vehicle accident exacerbated his back pain in any way and he made no claim for damages arising out of the motor vehicle accident. 16 The plaintiff attended Dr Hamzah again on 30 May when the plaintiff advised him about his involvement in the motor vehicle accident and further said he told Dr Hamzah on that visit he had no back pain, although the plaintiff was walking slowly at the time. Just prior to the motor vehicle accident Dr Edwardes was of the opinion that a return to work trial could be organised for the plaintiff but the car accident intervened and prevented this. 17 In June 1996 Dr Hamzah administered a second dorsal ramus block to the plaintiff's back which again gave very good pain relief but only for a period of four weeks before the back pain began gradually returning. At this point Dr Hamzah refused to administer a third injection despite the plaintiff's request that he do so. Rather Dr Hamzah recommended rhysolysis, although he explained to the plaintiff that such a procedure was not without risk. The plaintiff understood that it would be possible if the procedure succeeded, for him to obtain pain relief for up to a year but
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thereafter it would probably be necessary for him to undergo the procedure again, probably on a regular basis thereafter. 18 In August of 1996 Dr Suthers, another pain specialist, suggested that the plaintiff undergo rhysolysis in order to relieve his back pain but once more the plaintiff was reluctant to do so and indicated he would prefer to control the pain by medication. 19 In March 1997 Western Rehabilitation, the plaintiff's rehabilitation provider, organised another work trial for the plaintiff with the defendant on the basis that the plaintiff would work every second day for two hours, initially on a press machine whilst sitting on a chair. There was some confusion as to why the plaintiff did not commence this work trial as originally planned on 12 March 1997. Furthermore when the plaintiff was originally approached to commence the first day of the work trial at 10.00 am he indicated that this would be inconvenient to him as he had an appointment with his lawyer that morning. To accommodate this arrangements were made for the plaintiff to commence the work trial at 8.00 am. He also said that he went to get his work clothes from his locker but his locker had disappeared and as he did not have the appropriate safety equipment or clothing he could not undertake any work. It seems he also did not expect that he would be working in the factory area at that time despite apparently having been informed that he would be working there by the rehabilitation provider. 20 According to the plaintiff in March 1997 at the work trial, he would sit on a chair and press a button with his leg. He attempted to carry out this activity over a four to five day period but claimed that he had to cease it due to pain in his back and numbness in his left leg. He also complained that he had a problem emptying a plastic bucket which contained scraps or off-cuts from the machinery because it was difficult to bend down and take hold of it. He claimed that he was only able to sit for a maximum period of about 15 minutes without experiencing pain difficulties during that work trial. He did not consider that he had experienced any change in his symptoms or any improvement since his work accident in 1995 (except for the two periods of pain relief following upon the injections) and insisted that his pain is very real to him. The plaintiff's position is that his problem relevant to his pain state is in his back and left leg and not in his mind. 21 The plaintiff agreed that his general practitioner, Dr Edwardes, approved his return to work by way of a work trial in March 1997 and that this was an opportunity for him to return to the workforce. Relevant to
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that work trial, on 14 March 1997 the plaintiff carried out two hours work operating the press. On 17 March he worked between 10.00 am and 11.30 am when he left the trial early complaining of pain. He completed the full two hours work between 10.00 am and 12 noon sitting at the press on 19 March. On 21 March he worked between 10.00 am and 11.45 am and left 15 minutes early claiming he was in pain. His final day of work during the course of that trial was on 24 March when he worked for one hour only between 10.00 am and 11.00 am having to leave work early due to his claimed pain state. 22 The plaintiff's evidence was that until two to three years ago he was fairly optimistic about being able to return to work but has not thought of retraining since 1995 due to his pain state. In his quest for a cure his evidence was that he has consulted not only numerous medical practitioners but also an iridologist and has even attended a faith healer. He stopped using a TENS machine after it ceased to be of assistance. He denied exaggerating his symptoms or overacting in an endeavour to demonstrate to medical practitioners that his state was worse than it really is. There was some confusion in the plaintiff's evidence as to how precisely it was he came to be reviewed by the psychiatrist, Dr Skerritt, in August 2001 as he claimed that it was his idea. The plaintiff does, however, seem to have had some relatively restricted association with a group called IPAZA and it appears that persons in that society expressed some surprise that the plaintiff had not sought a psychiatric review. Ultimately it would also appear that the plaintiff's legal advisers considered it prudent that he undergo psychiatric assessment. In the end I do not see anything inappropriate or indeed unusual in the plaintiff's association with IPAZA or the fact that he or indeed others took the view that it would be worthwhile for the plaintiff to be reviewed by a psychiatrist, given the history of this matter and the observations of the other treating doctors and physicians. 23 The defendant's insurer also caused the plaintiff to be reviewed by a psychiatrist, Dr Mustac, on a number of occasions. The plaintiff was unaware as to how one of the members of IPAZA came to know of a proposed review by Dr Mustac and when he arrived and found this person present the plaintiff was most unwilling for them to play any role in the review and in effect he asked the person to leave Dr Mustac's rooms.
Other evidence 24 There was a considerable amount of medical evidence put before the Court in this matter which will be touched upon in due course, but in
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addition there was some short evidence from a number of other witnesses relevant to the plaintiff's work trials and progress in the rehabilitation process. 25 Ms Belger was initially the occupational therapist with Western Rehabilitation working with the plaintiff. In 1996 she was requested to assess the availability of suitable duties with the defendant in keeping with the medical restrictions placed upon the plaintiff, which she did. She became his case manager in March 1997 which involved her in the full coordination of the plaintiff's rehabilitation in that she was dealing with other specialists concerned with achieving the same objective. She identified both proposed work programmes for the trials in 1996, Exhibit D2, and 1997, Exhibit D3. Her recollection was that she probably spoke with the plaintiff prior to the commencement of his work trial on 12 March 1997 but she had no detailed memory or note of that discussion other than the plaintiff did advise her that a 10.00 am start would be inconvenient for him, given his appointment with his lawyer. She confirmed he could not start work on that day as the plaintiff did not have his work clothing and safety boots which were essential for the work trial. She also recalled that the plaintiff was provided with a special drafting stool upon which to sit as it was of an acceptable ergonomic design. Whilst the plaintiff agreed with this he said that he subsequently asked for a fixed chair which caused him less pain when seated. Ms Belger's assessment of these duties was that they fell into a category of light physical demand level and that the employer was flexible in accommodating the needs of the plaintiff in the work trial. The plaintiff was advised not to wait until the plastic bucket was full before he emptied it and told that if he was unable to lift it then he should seek assistance from colleagues. The work trial ended prematurely she said because of the plaintiff's complaints about his symptoms relevant to which he obtained medical advice to discontinue the trial. 26 In November of that year the rehabilitation provider also arranged for additional English lessons to be given to the plaintiff to improve his language skills. During her involvement with the plaintiff, Ms Belger also recalled that he undertook a diet programme in 1996 in conjunction with an exercise programme and that he later informed her he was receiving independent advice as to diet. Ms Belger's involvement with the plaintiff's rehabilitation ended in 1998 when the provider was informed that it was unlikely that the plaintiff would return to work in the foreseeable future and so it was not appropriate to continue occupational rehabilitation at that point.
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27 As to the work trial in March 1997 Ms Belger made it clear that her understanding was clerical duties were never available to the plaintiff and she was somewhat perplexed as to how he would have gained that impression, albeit she had no specific recollection or note of their discussion about what was expected of him on his return to work at that time. She believed that light production work was a more appropriate option given the plaintiff's skills and experience in working with the defendant.
28 Ms Swindells was employed by Western Rehabilitation as an exercise physiologist to implement exercise programmes in order to assist the physical rehabilitation of clients, who included the plaintiff. There was some initial discussion regarding the commencement of a diet programme and on 21 April 1996 Ms Swindells met the plaintiff at the Craigie Leisure Centre Pool to implement a hydrotherapy programme for him. The plaintiff was advised to complete exercises over a 20 to 30 minute period on each visit to the pool which was recommended at three times per week. The programme was to run for a six week period before a review and was very light in nature. The plaintiff's response to the programme, however, was that he was in pain and discomfort which he demonstrated upon movement in the water. He did attend the programme and cooperate with Ms Swindells but he made little progress. Nonetheless Ms Swindells did not have any reason to doubt the veracity of the plaintiff's complaints before 31 May 1996. On that day her recollection was the plaintiff informed her he had been driven to the hydrotherapy sessions because he was in pain and could not drive himself. This was at odds with what Ms Swindells observed at the end of the session as she saw the plaintiff driving out of the centre carpark by himself, having walked somewhat slowly and cautiously to his vehicle with the aid of a walking stick. She did not see him enter his vehicle but saw him driving away and felt he was driving somewhat faster over the speed bumps in the carpark than a person who had a debilitating back injury would do. She made a note of her observations to the case manager indicating that in her view the plaintiff's behaviour appeared somewhat inconsistent with his reports of pain. In about the middle of the year Ms Swindells ceased her involvement with the plaintiff's exercise programme. 29 Mr John is currently the human resources manager of the company which is an associated company of the defendant. In this capacity he is involved with rehabilitation of employees including the plaintiff. He confirmed the plaintiff began working for the defendant on 5 July 1995 as a full-time labourer in the assembly section of the rolls division. He later
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became aware of the accident on 17 November 1995 as a result of a form being filled in and conveyed to him. He was also aware of the proposed graduated return to work programme devised for the plaintiff to begin in February 1996, where alternative duties taking into account the physical restrictions placed upon the plaintiff, were considered and provided. Relevant to the plaintiff's performance on this work trial, documentation being Exhibit D7A – C, Analysis of Workplace, Light Duties Records was tendered. That trial failed because the plaintiff indicated that he could not cope with the work offered. Mr John stressed that company policy was to take a proactive role in the management of workers' compensation claims as a result of which alternative duties were always available. This was made clear to the plaintiff with whose general practitioners the defendant liased regarding the plaintiff's proposed return to work both in 1996 and March 1997. The plaintiff's performance on the second work trial was recorded and monitored in Exhibit D8A – E being an Analysis of Light Duties, Workplace Reports 14 to 24 March 1997 inclusive. 30 Mr John's evidence was that the defendant did not see any particular restrictions on the range of work which it could offer to the plaintiff and it would seem that each case is dealt with on an individual basis depending on the particular skills and abilities of the worker. On the plaintiff's return to work for the trial in 1997 Mr John confirmed that he was provided with a special stool to sit at the bench as well as a plastic bucket, which was considered to be lighter and therefore easier to lift than a metal bucket containing off-cuts. 31 On the occasions that Mr John observed the plaintiff in the factory, he noted he walked with a very significant limp and had to rest frequently when walking. Mr John recalled that one day quite by chance he observed the plaintiff getting out of his motor vehicle and he considered that, given the plaintiff had a significant back problem, he seemed to be moving with relative ease. He did not appear to lean on the door or pull himself out of the vehicle. 32 On another occasion he noted the plaintiff returning to his motor vehicle and once again he said that his observation was that the plaintiff, although walking to the vehicle very slowly, entered the driver's seat and stepped into the car without any apparent significant difficulty. His recollection was the plaintiff had a green Commodore whereas the plaintiff denied he had ever owned such a vehicle and claimed he drove a white Toyota at all relevant times.
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33 Whilst I do not doubt the veracity of either Ms Swindells or Mr John's observations of the plaintiff on the particular occasions nominated, in the end those observations in the context of the whole of the evidence do not persuade me that the plaintiff was acting in such a highly inconsistent manner with his reports of pain that such pain could not be said to exist or to exist at a comparatively minimal level. In each instance it was an impression that the witness formed, which might well be an honest impression but in the context of the ongoing history of this matter the observations might fairly be described as somewhat fleeting and lacking in precise detail. It is also the case that they were made a considerable time ago.
The medical evidence 34 Over the past seven years or so since the plaintiff's accident at work he has been reviewed by a considerable number of medical practitioners including two psychiatrists, Dr Skerritt and Dr Mustac. Some of those practitioners were not called again to give evidence at the retrial but rather counsel relied on their respective reports and evidence given at the earlier trial. 35 Dr Edwardes felt generally that the plaintiff had appeared willing to return to work but this had not been successful. Significantly Dr Edwardes noted that on seeing the plaintiff up until March 1999, when her evidence was given, that the plaintiff exhibited a considerable degree of lumbar muscle spasm with the area being tender to touch and accompanied by bulging of the muscles. This symptomatology was not able to be feigned in her opinion. Although Dr Edwardes placed the plaintiff on a weight reduction programme it was unsuccessful because the plaintiff's pain state prevented him from exercising in combination with the diet. 36 Dr Hamzah, a consultant in anaesthesia and pain management, reviewed and treated the plaintiff on a number of occasions commencing in April 1996 on referral from Dr Edwardes. He took a history and noted the CAT scan demonstrated a possible fracture at the left L5/S1 facet joint which was tender. For that reason Dr Hamzah carried out a dorsal ramus block to the area. He felt that if the plaintiff was exhibiting lumbar spasm at that point in time then he was probably suffering chronic ongoing inflammatory response to an injury. This type of response he considered could not generally be feigned as lumbar spasm is a reflex. In view of the success of the treatment Dr Hamzah felt in May 1996 that the plaintiff could begin undergoing some gentle hydrotherapy and mobilisation.
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37 Despite the significant improvement the plaintiff experienced as a result of the two dorsal ramus blocks administered, Dr Hamzah recommended the rhysolysis procedure in the hope that it would extend the period of pain relief but the plaintiff had concerns about undergoing the procedure. In his evidence Dr Hamzah did concede that the procedure could have negative outcomes for the patient and this was explained to Mr Mocevic. He believed that on clinical and diagnostic grounds, being Mr Mocevic's response to the dorsal ramus blocks, that he certainly did have some pathology in the facet joint. Although initially in his report of 4 June 1996 Dr Hamzah expressed the view that the motor vehicle accident of 30 May may have exacerbated Mr Mocevic's symptoms, he resiled from this view in a report of 4 February 1997 and explained that his earlier opinion was based on a misunderstanding or miscommunication in discussion with Mr Mocevic. Certainly when he reviewed Mr Mocevic on 30 May 1996 he noted limited cervical spine movements and spasm in the L5/S1 area.
38 Whilst Dr Hamzah advised the plaintiff to avoid bending and twisting he did not say he should not undertake a work trial and his recollection was the plaintiff maintained that he wanted to return to work which attitude Dr Hamzah encouraged. He was unable to explain the complaint of severe pain in the plaintiff's low back radiating into his left leg of which he complained during his 1997 work trial. He impressed upon Mr Mocevic the need and importance for him to follow the exercises he had been given. Dr Hamzah also stressed that a 10 to 15 per cent disability he assessed relevant to Mr Mocevic was with respect to a superannuation payout only and that he believed Mr Mocevic was permanently and totally disabled based on the signs and symptoms Dr Hamzah noted albeit relying heavily on Mr Mocevic's history to him and his demonstrated movement or lack of it. 39 The plaintiff first saw a neurosurgeon, Mr Vaughan, on 23 May 1996. The pain described by the plaintiff and the findings on the MRI confirmed a probable tear across the annulus at 4/5. He could not be sure, however, whether it was the result of a particular injury or whether it was productive of any symptoms. In relation to the area of numbness described by Mr Mocevic relevant to pain in the anterior thigh, Mr Vaughan believed it fitted precisely with the area of skin supplied by the lateral cutaneous nerve of the thigh. This in his view was an uncommon sequelae to a back injury and is seen more frequently in patients experiencing sudden increase in weight resulting in their clothing and belts being too tight. Mr Mocevic's first CT scan on the day of the accident showed osteoarthritic changes in the left L5/S1 facet joint and a
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later CT scan in 1998 confirmed a very degenerating joint. He believed that the degenerative joint was probably the single most important factor in the pathology of the plaintiff's presentation and if no symptoms were experienced prior to the accident his opinion was that it was the work accident which caused it to become symptomatic. 40 In his report of 19 June 1998 Mr Vaughan considered surgery was contra indicated because it would not result in improvement in Mr Mocevic's condition, which he believed was best addressed by lifestyle changes including an exercise programme and the consideration of pain blocks. He assessed the disability of the lumbar spine through the injury process as being in the order of 20 per cent, but felt it was a difficult assessment to make. In his final report of 18 June 2002 Mr Vaughan was pessimistic in his prognosis with respect to the plaintiff's physical recovery. He believed his capacity to work was minimal in the absence of appropriate motivation and lifestyle changes. He also believed Mr Mocevic appeared depressed and that his picture fitted that of chronic depression with a back pain state. 41 Although he cited overweight, lack of exercise and motivation as being factors present in Mr Mocevic's condition, Mr Vaughan was not prepared to say the plaintiff was exaggerating his state and believed his presentation of hopelessness might well be genuine. He believed Mr Mocevic's reaction to his pain state appeared significant and greater than Mr Vaughan would normally have expected from his demonstrated findings. Whilst he was of the opinion that the plaintiff's ability to perform in the heavy labouring force may ultimately have been impaired by the development of degeneration, as against that there was less evidence now seen on CT scanning of progressive degeneration other than in one joint. In the end in relation to Mr Mocevic's perception of his pain state and his reaction to it Mr Vaughan, as I understood it, would defer to the opinion of Dr Skerritt whose review he considered to have been very comprehensive. 42 Whilst not trained in psychiatry Mr Vaughan, against the background of his great experience, believed that Mr Mocevic had adopted an invalid lifestyle by which he meant his presentation was out of all proportion to his injury. He considered that eventually Mr Mocevic would have experienced low back symptoms and pain but as the result of an incident or event rather than merely through the passage of time, probably in his late 40's. In his view the spasm noted by other doctors in the plaintiff's left lumbar region may have been indicative of some inflammatory change but even if present many months after the accident it was not
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indicative of the severity of an injury. Mr Vaughan's view was that the 20 per cent disability he assessed was attributable to the work accident suffered by the plaintiff. 43 On 23 August 1996 Dr Suthers, an occupational physician, reviewed the plaintiff for the first time. He diagnosed Mr Mocevic as suffering from chronic low back pain secondary to facet joint irritation, left neuralgia paraesthesia, obesity and depression. The history he obtained regarding the work accident suggested to him that it was a minor rather than major event which resulted in a surprising legacy of disability in the plaintiff, in the sense that it was disproportionate to the injury suffered. Given his findings on review and physical examination he was intrigued that the plaintiff required the reassurance of a walking stick. In his experience problems arising from facet joint irritation usually dissipate in about 90 per cent of people over a period of a couple of months and any ongoing symptoms after that time are usually not disabling to the point where the patient cannot return to work. In view of Mr Mocevic's presentation Dr Suthers said he would have expected that the car accident would have exacerbated or aggravated the plaintiff's back pain. 44 In his opinion the plaintiff suffered a degenerative condition in his lower back which was productive of at least some symptoms. He could not see any real physical impediment to Mr Mocevic completing his work trials, but did not consider him fit to return to his pre-accident duties despite the fact that pain itself was not a contrary indication to work. He found it surprising at the time of the first trial that the plaintiff was still presenting in such a disabled manner. He could only attempt to explain this by reference to the concept of non-organic back pain, being a condition where factors that are not surgically correctible are involved. Dr Suthers believed that the plaintiff does have ongoing back pain but questioned its severity and how much of it was due to psychological stresses. He also believed that in view of the fact that the plaintiff has some degenerative changes, this may well be the source of some of his current pain or the pain of which he complains. He could not discount the possibility that an injury could have activated the degenerative problem in the plaintiff's facet joint and caused it to become symptomatic, but he did not believe that the evidence before him was strongly supportive of that proposition. 45 Dr Suthers diagnosed the plaintiff as suffering from chronic low back pain with some degenerative changes in the lumbar spine and strong signs of non-organic back pain. He did not consider that disability was permanent but that the predominant factor in the plaintiff's condition was
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that of abnormal illness behaviour associated with the non-organic signs. Even if the plaintiff were to continue to have some ongoing back pain, Dr Suthers considered he could return to full-time work with the defendant, without restrictions and that he was at least capable of operating a delivery van. These comments were made, however, putting aside the issue of the non-organic signs and the abnormal illness behaviour. He could not isolate the factors underpinning what he described as the plaintiff's lack of motivation. He believed it was possible that one of the causes of the plaintiff's abnormal illness behaviour was the injury and pain arising from symptoms in the facet joint after the accident, but he did not concede that it was probable that this was the cause of the condition. Dr Suthers was also not prepared to agree that one of the factors underpinning the abnormal illness behaviour exhibited by the plaintiff could be the motivation of financial gain from the litigation process. 46 In June 1997 the plaintiff consulted Dr Ker, a physician in rehabilitation medicine. Dr Ker considered it more than likely the plaintiff's symptoms of pain were arising from the L4/5 facet joints in the low back. He believed they had been rendered symptomatic in the plaintiff's accident at work and that it was not unreasonable that the plaintiff suffered facet joint pain after that incident. What he did consider curious, however, was the fact that two years after the incident the plaintiff was still complaining of pain at a time when one would have expected it to have resolved. This also suggested, unfortunately, that the pain state was going to continue. The MRI scan, according to Dr Ker, showed structural changes within the intervertebral disc which were part of a degenerative process. Dr Ker said he could only speak generally as to what the plaintiff's working future might have been, in terms of any degenerative changes occurring in his back, in the absence of the work accident. He did believe, however, there was a likelihood that in the future the plaintiff would have become symptomatic and that such changes would have manifested themselves within 10 years of the date of the accident. He could not say at trial, however, with any certainty what the gravity of those symptoms would have been in the sense of he could not say that they would have disabled the plaintiff and prevented him from working, or working in a physically demanding occupation. In his report of 19 July 2002 Dr Ker said he believed that 10 years after the accident at the end of 2005 there was an approximate 50 per cent likelihood that the plaintiff would have started to experience symptoms in his back within the next five years and those would have very rapidly led to a curtailment of his work as a labourer to the point where he would not
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have been able to continue in that occupation. Thereafter his chances of competing effectively for alternative work would be poor given his limited experience and capacity in alternative work areas. 47 In summary Dr Ker was pessimistic in his prognosis, given that he did not consider the plaintiff fit to carry out any type of work on a full or part-time basis. In the light of the plaintiff's established pathology and entrenched pain behaviour pattern he could not predict any improvement in his future circumstances. He did say, though, that the numbness on the leg was an unusual complaint to be associated with facet joint pain and its source did not have a ready explanation. Dr Ker was really unable to assess how much of the plaintiff's disability was related to his work accident and how much, if any, was related to pre-existing factors such as pre-existing degenerative changes. 48 Dr Ker saw the work accident as the instigator of the plaintiff's symptoms and the injury he saw as the instigator of that degenerative change structurally progressing over time, irrespective of any symptoms. The work accident caused what may well have been an asymptomatic degenerative condition to become symptomatic and the injury itself might have triggered further degeneration. The end result was that Dr Ker felt that it was more likely than not that the plaintiff was going to experience more degenerative changes as a result of the incident of the injury. A range of factors rendered the plaintiff unfit for work including his lack of physical capacity, limited work skills, the persistent and intrusive nature of his pain, his limited English language skills and his inability to compete in the open workforce in relation to anything but physically demanding work. In a report of July 2002 Dr Ker said he did not believe that he observed any attempt by the plaintiff to amplify pain behaviours. 49 Mr Batalin, an orthopaedic surgeon, reviewed the plaintiff on three occasions and prepared a number of reports relevant to them. In September 1998 Mr Batalin commented on the fact that the plaintiff was overweight and showed excessive pain response to standard assessment. He detected no localising weakness or muscle wasting. In particular he noticed that the plaintiff's straight leg raising in the sitting position was bilaterally negative but inconsistently, straight leg raising in the lying position was allegedly painful when the right leg was elevated to 20 degrees and the left leg to only 15 degrees. In his view this was totally inconsistent with the plaintiff's ability to sit on the examination couch with both legs extended. He considered that the plaintiff had pre-existing and longstanding degenerative changes in his lower lumbar spine but these did not explain the numbness affecting Mr Mocevic's anterior
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proximal left thigh. He noted significantly excessive operant pain behaviour and a variation between direct and indirect methods of assessment, which in itself raised the probability of excessive pain response behaviour. He said that the plaintiff was convinced that he was unable to carry on with any form of employment similar to his pre-accident occupation and the situation was exacerbated by his excessive weight and lack of general fitness in combination with pre-existing degenerative changes in the back. For that reason he considered Mr Mocevic at that time had a work incapacity but saw no impediment to him carrying out work of a clerical nature or a sales position that was relatively sedentary, if suitable retraining could be provided. At the time he assessed Mr Mocevic as having about a 20 per cent disability of the thoracolumbar spine as a whole of which at least 50 per cent (10 per cent) was due to pre-existing factors. 50 Mr Batalin reviewed Mr Mocevic again on 26 July 2002 and made similar observations to those in his previous review. He believed that if the original injury had been strain then sufficient time had elapsed for the injury to settle. Again he noted significant discrepancies when using direct as distinct from indirect methods of clinical assessment and the more reliable indirect methods of clinical assessment did not suggest any significant disability to Mr Batalin's mind. He believed the plaintiff's residual disability was partly due to significant weight and fitness problems, partly due to degenerative changes and noted again that Mr Mocevic was convinced that he was totally disabled for work, a view not shared by Mr Batalin. He did not recommend, however, that Mr Mocevic return to heavy labouring work given his physical problems. He made the point, as a number of other medical practitioners did in their evidence, that Mr Mocevic's disability was complex in nature and the prognosis in such a patient is guarded, depending to a degree on other environmental factors. 51 In his evidence Mr Batalin said that on the second review using indirect methods of assessment he noted the plaintiff to have only about a 15 per cent restriction as distinct from his earlier assessment of a 20 per cent restriction but the difference in his opinion was not significant because such a condition is never static. It remained the case that he would still attribute 50 per cent of the disability to underlying degeneration and 50 per cent to the legacy of the work accident. This time in his evidence Mr Batalin had omitted to say that the plaintiff had a composite pathology in that it was not simply related to facet joint nor was it simply related to a disc but there was a problem of wear and tear in the lower two lumbar levels of the spine including some disc problems
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and degenerative problems. Nonetheless his experience suggested the possibility of good results by way of treatment using facet joint blocks. Mr Batalin was not as pessimistic in his prognosis as Dr Skerritt, although he did agree with some aspects of Dr Skerritt's opinion, including the fact that the plaintiff's ethnicity may well play a role in his current situation and that the longer illness behaviour persists the more ingrained it becomes and therefore the more difficult it is to reverse. 52 Mr Batalin made the point that it was very difficult to predict whether and when the plaintiff would have experienced any symptoms if he had not sustained an injury at work. On the basis of probability and taking into account mechanisms such as fitness, Mr Batalin ventured the view that the plaintiff would have become symptomatic in the future but could not with any degree of certainty say when that would have been. In any event he did not regard facet joint injections, of which he would only recommend a maximum of three to five to be a cure for the problem of which the plaintiff complained. Nor was rhysolysis, although both procedures could have temporary benefits. As against this both procedures did carry with them some degree of risk to the patient.
The psychiatric evidence 53 Dr Mustac saw the plaintiff on three occasions in 1997, 2001 and again in 2002. He had also the advantage of reading the psychiatric report of Dr Skerritt who was called on behalf of the plaintiff. 54 Dr Mustac clearly stated in his evidence that on each occasion he reviewed the plaintiff he showed no signs of any anxiety or depression. To the contrary he regarded Mr Mocevic as relating in a normal manner and he was a man who on his own admission claimed was satisfied with all aspects of his life, except the fact he could not work. 55 In Dr Mustac's view abnormal illness behaviour addresses a concept whereby a person behaves in an unusual or abnormal fashion relevant to the presentation of their illness and it can involve either illness affirming or illness denying behaviour. Such behaviour can be conscious in a situation where, for example, there is some form of gain financial or otherwise to be made from complaining of illness or incapacity. On the other hand such behaviour can be unconscious such as in conversion disorder where the patient may, for example, have all the signs of paralysis but not in actual fact to be paralysed. He did not believe that the plaintiff had a psychiatric injury and he was not feigning any psychiatric impairment. The plaintiff's attitude to Dr Mustac was that he could see no
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reason for him to consult a psychiatrist. He assessed Mr Mocevic as having a sense of humour and a positive attitude towards his social and family situation. With those observations Dr Mustac thought it would be entirely inappropriate to even address the issue of abnormal illness behaviour. 56 Whilst Dr Mustac stressed that the plaintiff has no form of mental illness, a number of medical practitioners were unable to find a physical basis for the plaintiff's ongoing complaints of severe pain and disability which were grossly out of proportion with underlying physical impairment. Dr Mustac considered that the plaintiff was intent on exaggerating his complaints and demonstrated signs, as described by Waddell, indicative of a person exaggerating or feigning disability. This is not to say, however, that the plaintiff suffers from abnormal illness behaviour. Although Dr Mustac was at pains in his evidence to stress that he found the plaintiff an amenable and cooperative individual, nevertheless he believed that he was malingering, which is a conscious state. 57 Dr Mustac gave the plaintiff an opportunity to exaggerate his disability but he did not do so, as distinct from patients who are intent upon exaggerating. Unlike Dr Skerritt, he did not favour a view that individuals of a non-Anglo Saxon background are more inclined to present symptoms in a more florid manner. He dismissed the plaintiff's ethnic origin as being a factor contributing to his behaviour relevant to complaints of pain for which there seem to be little in the way of physical cause. He conceded, however, that there were many inconsistencies operating in this case, one being his assessment of the plaintiff as being reasonably happy with his life and yet complaining to medical practitioners that he is in quite severe pain most of the time. In the light of this he could only conclude, given his other observations, that the plaintiff is consciously exaggerating his symptoms and from a psychiatric perspective he believes the plaintiff is able to work normally. The issue as Dr Mustac saw it is one of motivation, with the plaintiff's longitudinal history indicating that he is actively resisting any form of return to work or retraining and lifestyle changes. 58 Dr Skerritt gave evidence that was at odds in a considerable number of respects with that of Dr Mustac. In his view abnormal illness behaviour is not a psychiatric diagnosis as such, but the concept subsumes a number of diagnoses. He described it as a way of thinking and trying to understand a situation where there are contributions other than physical ones to physical symptoms. There were he felt a number of factors
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contributing to the plaintiff's abnormal illness behaviour, including his ethnic origin, response of the family, immoralisation from experiencing symptoms over a long period of time and increasing pessimism. Dr Skerritt did not feel that psychiatric intervention in the form of treatment would assist in addressing the plaintiff's problems. He considered it a massive task to change the plaintiff's attitude to his symptoms and his behaviour, particularly given that the plaintiff did not possess very much insight into those factors contributing to his behaviour. Dr Skerritt did not believe that the plaintiff was someone who was disposed to developing a form of abnormal illness behaviour as a result of everyday life events. He considered that the amplification or exaggeration of the plaintiff's pain behaviour, in other words his abnormal illness behaviour, would not have occurred if the plaintiff had not suffered pain in the first instance. Dr Skerritt found it difficult to say whether the plaintiff had in fact made a conscious decision to adopt the abnormal illness behaviour role because reaching that conclusion or opinion involves assessment by a human being. Nonetheless he considered that the odds were very much against it, taking into account all he knew of the plaintiff and his background. The plaintiff did not possess a severe personality disorder which is the only factor that has ever been demonstrated as a reliable predictor of malingering. In addition he felt that it was highly unlikely that the plaintiff would adopt and continue to live this role, which was very limiting in a number of respects, for the past six to seven years regardless of any gain he might hope to obtain. 59 Dr Skerritt's evidence was that the whole concept of whether abnormal illness behaviour in this area is conscious or unconscious was somewhat faulty. Similarly he felt that it was naïve to assume maintaining social contact was an indicator that one was not depressed, since an individual suffering from depression does not necessarily withdraw socially because the symptoms of the illness of depression vary enormously. He was not prepared to say that any one particular piece of isolated behaviour was either consistent or inconsistent with depression simply for the reason that it was such a variable condition. 60 Dr Skerritt was of the opinion the plaintiff presented with exaggerated symptoms but those symptoms were real in the sense that the plaintiff perceived his pain and disability as being as he represented them to others. The plaintiff on Dr Skerritt's assessment was that he genuinely did not believe that he is able to work due to his perceived pain state and his reaction to it. It was this diagnosis or opinion which underpinned Dr Skerritt's poor prognosis for the plaintiff's recovery and any positive changes occurring in his lifestyle.
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Findings on the evidence
61 In all of the circumstances none of the medical practitioners that were called in relation to Mr Mocevic's physical ailments and complaints save for Dr Mustac were prepared to say that he was a fraud or behaving untruthfully. It is the case that the general consensus of their opinions was that the plaintiff's presentation and reaction in the light of the nature of his physical injuries and their sequelae, simply could not be explained other than by non-organic causes. It was only the psychiatrist, Dr Mustac, who in effect said, being as fair and as balanced as he could towards the plaintiff, that Mr Mocevic did not suffer from any genuine non-organic complaints that might explain his behaviour and physical restrictions and further that he believed the plaintiff was consciously exaggerating his symptoms. 62 It has been observed that cases of this nature where the pain and disability of which a plaintiff complains has no organic cause or a cause which would appear to be disproportionate to the reaction to an accident and are therefore alleged to be the result of a form of neurosis or psychological response, are amongst the most difficult which courts have to decide. It was further observed in Ivkovic v Rinaldi [1980] 25 SASR 516 at 518 "it is necessary for a trial Judge to avoid preconceived scepticism and to be entirely open to conviction of the genuineness of the alleged pain and disability". A little later in his judgment King CJ observed: "A trial Judge gains assistance, often considerable assistance, from the opinions of medical experts, especially careful and competent psychiatrists, as to the genuineness of the complaints. Finally, however, a Judge must reach his own conclusion on the whole of the evidence including his assessment of the plaintiff. Much depends upon the truthfulness of a plaintiff. If a Judge is convinced that a plaintiff is untrustworthy, the medical evidence, based as it must be in this class of case to a considerable extent on the complaints made by the plaintiff, must come under close scrutiny. It must never be forgotten that, important as expert medical opinion is, the law entrusts the responsibility of decision not to medical experts but to a Judge. In discharging that responsibility a Judge has the great advantage of hearing all the evidence and, in particular, of having the veracity of a plaintiff tested in the witness box. He is not entitled to abdicate the responsibility of reaching his own conclusion on the whole of the evidence as to the genuineness
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of a claim by reliance upon the opinions of expert witnesses, however qualified they might be." 63 It is necessary on the whole of the evidence to decide the extent, if any, of the plaintiff's physical injury resulting from his accident and relevant to that the significance of any pre-existing degeneration in his spine in terms of its impact upon his future likely work capabilities had the plaintiff not in fact been involved in the accident in the first place. Finally, there is the issue of the explanation for the manner in which the plaintiff has consistently presented to an array of medical practitioners and others since his work accident. It is in effect conceded on behalf of the plaintiff that his presentation or his physical disability with respect to his capacity to carry out work and related activities significantly exceeds on the evidence what appears to be the direct result of the pathology in his spine occurring as a result of the accident. That, however, is not the end of the matter because if it is accepted that the plaintiff sustained a physical injury, which I do not understand to be in dispute, and if it is accepted that he developed by way of response to it what has been termed as abnormal illness behaviour then the question arises as to whether the plaintiff does indeed have an entrenched general perception of his pain and limitations, though objectively this may not be the case, or whether he is feigning that perception and response and as a result consciously exaggerating his condition and incapacity for some reason, for example, for financial gain. 64 The position of the defendant is that the injury sustained by the plaintiff was minor in nature and that he has completely recovered from any resulting disability and further that the plaintiff suffers from no genuine psychiatric condition by way of response to his accident and its sequelae, such as would render him unfit to carry out either his pre-accident occupation or indeed any other form of employment for which he may be qualified and fit. 65 Although the plaintiff does not have English as his first language I had no difficulty in following and understanding his evidence and I carefully observed his demeanour during the course of his evidence. The plaintiff's presentation in that regard did not give rise to an assessment on my part that he was behaving in a dishonest or fraudulent manner in the sense that I did not find him an uncooperative or evasive witness. That, however, as has previously been observed is not determinative of the issues before the Court because it is necessary for the trial Judge to carefully consider all of the evidence which includes the evidence of medical practitioners and others. This evidence has been referred to in some detail earlier in these reasons.
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66 While I do not find that the work accident suffered by the plaintiff was one involving great trauma, nonetheless on all of the evidence I do not consider it to have been so minor as to have been of little or no consequence in the end result. He almost immediately sought medical attention and shortly thereafter was hospitalised for a period of time. The plaintiff has undergone a variety of medical tests and reviews and complains of ongoing pain and incapacity.
67 Dr Hamzah found some pathology in the plaintiff's L5/S1 facet joint area and noted a very positive response to the plaintiff's pain state after administering two dorsal ramus blocks. In my view this is independent evidence that the plaintiff was suffering some form of pathology at that time. He even requested a third dorsal ramus block in his effort to obtain relief for his pain state as he perceived it. I have grave doubts that someone who was feigning or exaggerating an injury would request a fairly painful and invasive medical procedure in a quest to alleviate pain. 68 Mr Vaughan considered that the plaintiff suffered a strain aggravation in his lumbar spine and suggested a probable tear of the annulus at 4/5. He could not discount the plaintiff's work accident as the cause of this condition. Degenerative changes he noted in the facet joint at L5/S1 he considered became symptomatic, in the absence of any evidence to the contrary, as a result of the plaintiff's involvement in the accident. It is to be noted that Mr Vaughan was not prepared to dismiss the plaintiff's complaints as fraudulent and he considered he might well be genuine in his presentation, preferring to defer to the opinion of Dr Skerritt in this regard. As with a number of medical practitioners who gave evidence, Mr Vaughan could not be certain in his view when any degenerative changes in the plaintiff would have manifested themselves in the absence of the accident, but at one point he said at best, which I interpreted as being to a degree speculative, he may have experienced symptoms as a result of degenerative changes in his late 40's, due to an incident rather than the passage of time. 69 Dr Ker considered that the plaintiff had suffered an aggravation which had caused pre-existing degeneration to become symptomatic in the plaintiff's L5/S1 left facet joint. Despite this from a physical point of view he was not at all persuaded that the plaintiff could not carry out full-time physical work. His opinion, however, has to be considered in the light of Dr Ker's qualification, namely that it was proffered without a consideration or reference to any non-organic conditions from which the plaintiff might suffer. Of all the medical practitioners Dr Ker was the most firm in his evidence as to any impact of pre-existing degeneration in
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the plaintiff's spine, relevant to his future work capabilities in the absence of the accident. It is in my view understandable that many of the medical practitioners considered this issue extremely difficult to predict and indeed some of them were unwilling to venture an opinion on the matter. It is not in issue on behalf of the plaintiff that there is some evidence of degeneration in his spine which in all likelihood pre-existed the accident, although at the time of the accident he was asymptomatic. Doing the best he could Dr Ker, when he last reviewed the plaintiff prior to trial, considered that had the plaintiff not had his accident it was likely that he would have been asymptomatic until approximately 2005 and then there was a 50 per cent chance or likelihood that thereafter in the next five years the plaintiff would have developed symptoms as a result of his degenerative condition. Mr Vaughan was not prepared to be so definite in his prediction and nor was Mr Batalin, although the latter did not disagree that at some point in the future the plaintiff would in any event have experienced symptoms as a result of his pre-existing degenerative condition. 70 It is clear in my view that the plaintiff suffered a relatively painful physical injury as a result of his accident at work and that this also caused previously asymptomatic degenerative condition from which he suffered in his spine to become symptomatic. The legacy of this injury in physical terms alone, however, is not in my view so physically debilitating that it now precludes the plaintiff from carrying out a range of physical activities, although there are some restrictions on this such as avoiding very heavy lifting and excessive bending. Nonetheless it is not this injury or its physical consequences and ongoing symptomatology that now prevent the plaintiff from returning to paid employment with the defendant or a similar employer. Clearly had the plaintiff not been injured in his work accident in all likelihood he would have been able to continue working in his pre-accident occupation involving heavy physical labour but on the whole of the evidence and in particular the evidence of Dr Ker, in the absence of the accident the plaintiff, would have at some point in the future experienced symptoms associated with his pre-existing degeneration. It is simply not possible to be precise as to exactly when this would have occurred as a range of factors no doubt would have an impact upon this. In the end I am guided by the estimate of Dr Ker on the point. Whilst it is not exactly clear what impact the degeneration on becoming symptomatic would then have had upon the plaintiff's work capacity or particularly his capacity to carry out heavy work, there is no doubt that it would have been effected it to a degree such that it is more
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probable than not that the plaintiff would have been unable to continue consistently carrying out hard or heavy physical labour. 71 In the end result the major issue in this trial to be determined on the evidence as it currently stands, is the explanation for the plaintiff's presentation and complaints to various medical practitioners and an apparent disability which cannot be fully explained by findings of any organic pathology as well as a presentation that it is conceded is disproportionate to the organic pathology in the sense that it is much greater than would or might be anticipated. Connected with this is the issue of the plaintiff's reaction to the mechanism of his injury and whether or not in all the circumstances it could be said to be a reasonable reaction. 72 Clearly an examination of the respective evidence of the two psychiatrists, Dr Mustac and Dr Skerritt, reveals that they formed quite opposing views as to their diagnosis of the plaintiff's mental or psychological/psychiatric state and the motivation for his presentation. For the reasons expressed in his evidence Dr Mustac considered it inappropriate to even address the issue of abnormal illness behaviour. In the final analysis result I prefer and accept the evidence of Dr Skerritt as to this aspect of the matter. It is to be noted, and it is of importance in my view as previously stated, that a number of the treating specialists in effect concluded that there must be some other underlying reason apart from lack of organic pathology to explain the plaintiff's presentation and perception of his condition. I also note that although Dr Mustac gave the plaintiff an opportunity to exaggerate his disability Mr Mocevic did not do so. The plaintiff has presented consistently and with the same complaints to a variety of medical practitioners for a period of nearly seven years since his accident. I consider it unlikely that he would have done so and led the somewhat restricted lifestyle he has in the hope that he would gain financially or simply because he did not wish to work. I accept Dr Skerritt's evidence in this case that depression is a condition which varies from individual to individual in the sense that not everyone presents and behaves in exactly the same way when suffering from depression. There is nothing in the evidence that persuades me that the plaintiff is consciously exaggerating his symptoms. I accept, and it does not appear to be in issue, that the plaintiff does present with exaggerated symptoms but they are real in the sense that they are perceived by the plaintiff who genuinely believes the situation to be as he presents it to others. This response I find is a direct reaction by the plaintiff to the physical injury he sustained as a result of the injury at work. The prognosis for recovery, particularly given that this behaviour is now entrenched, is poor and there
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is no evidence which again persuades me that an end to this litigation will or is likely to result in a degree of recovery on the part of the plaintiff. 73 The evidence before the Court cannot support a finding that the injury of the plaintiff sustained in the motor vehicle accident in May 1996 contributed in any way to his current condition. Dr Hamzah expressly resiled from this view and I consider Dr Suthers' comment that he would have expected the car accident to have exacerbated, exaggerated or aggravated the plaintiff's back pain to be somewhat speculative. The facts of this case can be readily distinguished from those in Donjerkovic v Adelaide Steamship Industries Pty Ltd [1980] 24 SASR 347. There is no evidence that Mr Mocevic had a pre-existing neurotic condition which left him vulnerable or susceptible to developing abnormal illness behaviour or an over-reaction to trauma following an accident. On the material presented to the Court I am not persuaded that nonetheless a finding should be made that there should be a discount for the contingency that if the plaintiff has reacted in this manner to his physical injury then he is necessarily someone who would over-react at some future point in his life should he suffer physical trauma of any type. The psychiatric evidence simply does not sustain a finding of this nature. I also consider that the facts of this case are also readily distinguishable from those in Kalavrouziotis v Howel & Anor, unreported; FCt SCt of WA; Library No 980219S; 1 May 1998. In that case among other findings the learned trial Judge took an adverse view of the plaintiff's credibility and indeed the plaintiff at trial admitted lying to the insurance investigator who took a statement from him. This is not a case where I have found the plaintiff lacking in credibility and he certainly did not admit to telling lies to anyone. 74 I do not accept that there is any persuasive evidence that the plaintiff has failed to mitigate his damages. Counsel for the defendant asserted that the plaintiff lacks motivation and has behaved unreasonably by among other things, not being proactive in returning to work and not cooperating as fully as he might have in his work trials and with those concerned with the plaintiff's rehabilitation process. The test for reasonableness is an objective one but depends upon personal characteristics, including the worker's state of knowledge at the time; Faslic v Milingimbi Community Inc (1982) 150 CLR 345, Fontaine v Quality Platers (1994) 12 WAR 71. 75 The plaintiff did not have an extensive work history before coming to Australia but he was certainly employed in a bakery and fled his homeland in very difficult circumstances. On arrival in Australia,
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although the plaintiff did not immediately find employment, there is very reasonable explanation for that given the language barrier and no doubt the adjustment he had to make to a very different culture upon arrival in this country. It should be noted that the plaintiff made significant efforts to attempt to learn English upon arrival in Australia and I accept that this was his priority with a view to obtaining employment. I do not consider it to be significant that the plaintiff had only worked for approximately four months on a full-time basis before he was injured whilst in the defendant's employ. The most that can be said is it was a most unfortunate event which regrettably occurred early in the plaintiff's employment history with the defendant. There is no evidence before the Court which suggests that during this period of time the plaintiff was a less than a satisfactory employee or one who had a significant amount of time off work in questionable circumstances. 76 The evidence suggests that overall the plaintiff did cooperate as best as he was able with his rehabilitation providers in the sense that, for example, he did attempt to undertake the hydrotherapy and physiotherapy offered to him and he also undertook some advice as to diet. The plaintiff's excess weight is problematic but I accept that part of the difficulty in achieving weight loss is that the plaintiff is unable to perform very much meaningful or effective exercise because of his pain state or his perceived pain state. The plaintiff's evidence was that he does not eat to excess, although he does find that eating with family and friends is one of the few pleasures that he now has in life. 77 I accept that the defendant has been willing at all times to accommodate the plaintiff in the sense that it has encouraged and assisted him to return to work by, for example, the provision of appropriate tasks on the two work trials Mr Mocevic attended. On the other hand I do not consider that there was necessarily an onus on Mr Mocevic to actively pursue with his employers the question of his return to work. Whilst Dr Hamzah denied he discouraged the plaintiff from returning to work it seems that the plaintiff understood Dr Hamzah's advice to him to be to the effect that a return to work could be problematic and this in conjunction with the plaintiff's perception of his physical state at the time explains in my view why Mr Mocevic did not pursue the issue with his employer. |