Mocevic v PROK Group Ltd

[1999] WADC 6

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

CIVIL

LOCATION:   PERTH

CITATION:   MOCEVIC -v- PROK GROUP LTD [1999] WADC 6

CORAM:   HH JACKSON DCJ

HEARD:   22, 23 AND 24 MARCH 1999

DELIVERED          :   26 JULY 1999

FILE NO/S:   CIV 4111 of 1997

BETWEEN:   NENAD MOCEVIC

Plaintiff

AND

PROK GROUP LTD
Defendant

Catchwords:

Industrial accident - Assessment of damages only - Physical and psychological components.

Legislation:

Workers Compensation and Rehabilitation Act 1981, s93D, 93E

Result:

Damages assessed in the sum of $30,200

Representation:

Counsel:

Plaintiff:     Mr K Pratt

Defendant:     Ms B A Mangan

Solicitors:

Plaintiff:     Separovic & Associates

Defendant:     Phillips Fox

Case(s) referred to in judgment(s):

Ivkovic v Rinaldi [1980] 25 SASR 516

Russell v Ciesielski, unreported, FCt SCt of WA; Library No 9801622; 1 May 1998,

Case(s) also cited:

Black v Motor Vehicle Insurance Trust [1986] WAR 32

Bowen v Tutte (1990) A Tort Rep 81,043

Fazlic v Milingimbi Community (1980) 32 ALR 437

Fontaine v Quality Platers (1994-5) 12 WAR 71

Doujerkovic v Adelaide Steamship Industries Pty Ltd (1979) 24 SASR 347

Kalovrouziotis v Howell & Kalovrouziotis, unreported; FCt of SCt of WA; Library No 980219; 1 May 1998

Plenty v Argus (1975) WAR 155

Purkess v Crittenden (1965) 114 CLR 164

Thomas v O'Shea  (1989) A Tort Rep 80-251

Watts v Rake (1960) 108 CLR 158

Wilson v Peisley (1975) 7 ALR 571

Wynn v New South Wales Insurance Ministerial Corporation (1995) 184 CLR 485

HH JACKSON DCJ: 

Background

1. The plaintiff was born in Bosnia, then part of Yugoslavia on 21 February 1959 and emigrated to Australia as a refugee from the war in Bosnia in 1992.   The plaintiff completed his schooling in Yugoslavia in 1978, and he subsequently passed two units in what are described as "administrative studies" before working as a laboratory assistant during compulsory military service, and then completing a bakery course, which he did in 1982.  He subsequently married, had two children and for 10 years ran his own bakery business.  Originally he migrated to Sydney but in August 1993 he moved to Perth.   Under cross-examination he agreed that both in Sydney and Perth for some two years he had looked for work without success.  After coming to Australia he took some time to learn English and after a period of unemployment commenced work with the defendant on 12 July 1995 as a labourer at its premises in Bayswater.  On 17 November 1995 he was involved in an industrial accident in respect of which the defendant admits liability.  In the statement of claim the accident is described thus:

   "The plaintiff in the course of his employment was lifting a coil from a machine when his right foot slipped on the floor, causing him to fall backwards, striking the corner of the table with his buttocks before falling to the floor."

2. The injuries and damages flowing therefrom are in dispute and the defendant further says, as pleaded in the defence, that "any loss is due to pre-existing degenerative changes in the lumbar spine and/or an injury sustained to the lower back in a motor accident on or about 15 May 1996". 

3. He gave his evidence partially through the use of an interpreter.  He is a large man who presented in court stooped, stiff, overweight and moving slowly, leaning on a walking stick

The Injury

1. Mr Pratt for the plaintiff in opening described the injury thus:

   "The plaintiff, essentially, received a localised back injury.  It is superimposed upon age appropriate degenerative changes and that injury has been sufficient for him, firstly, not to be able to return to his pre-accident work or any work, despite two attempts to return under the guidance of rehabilitation.  The medical evidence … is that the plaintiff's injury is of sufficient and long-term enough to warrant an award of damages on the basis that the plaintiff is effectively unable to work, certainly full time, in any capacity in the future."

2. He went on to accept that the Court might well find that the plaintiff's then asymptomatic degenerative back condition had been rendered symptomatic by the accident. 

3. Giving oral evidence the plaintiff said that he had been employed full time working a good deal of overtime each week.  He was in very good health with no back, neck or leg problems.  He worked as a press operator and also performed other tasks involving varying weights.  The basic press operator's work involved lifting rollers off a storage frame and placing them into a press and then removing the product. 

4. On 17 November 1995 he commenced duty at 7.00 am working outside the factory itself until about 10.30.  He was then asked to operate the press machine.  His evidence continued:

   "So you went inside and went to your press machine? --- I come inside.  I started make rolls.

   What happened? --- … when I make first roll I put in machine to see if it would turn out.

   …

   Yes? --- And I saw that was good rolls and I turn off test machine and tried to ease it.

   …

   THE WITNESS:  Take it out.

   PRATT, MR:  So you tried to take the roll out of the test machine? --- Yes.

   Do you remember how heavy that roll was or would you not know? --- About 2, 3, 4 kilos.

   …

   How did you try to take it out? --- Like this.  Take it out.

   Your Honour, for the transcript, the plaintiff is, what, gripping the roll from underneath.  Is that right?  Is that what you're doing? --- Yes.

   PRATT MR:  With both hands you tried to pull it up out of the machine? --- Yes.

   What happened? --- I didn't can do it because the roll was stuck.

   The rolls were stuck? --- I try a second time; no.  I tried third time with more power and I take this roll and I was - slide - - -

   Did the roll come out that third time ? --- Yes, third time, roll came out.

   And what happened as the roll came out? --- I keep in my hand roll and because I third time very heavy with my power, take and that moment I go back and with my right buttock I hit a sharp metal corner of press machine table for - that we keep bearings.

   There was a press machine behind you where you keep bearings.  Is that right? --- Yes.

   You hit your right buttock on that machine? --- Yes.

   What happened then? --- My two legs suddenly slide and went up in the air.

   Why did that happen? --- That happened because when we make rolls, we put the grease in.  Somebody worked that night and put the grease in - clean.

   So your feet went from under you.  Is that right? --- Yes.

   What happened then? --- I fell down with my bottom onto the floor, on the concrete floor.

   Now, what, if any, pain did you feel at that time? --- I feel a strong pain in my right buttock and I try stand up and I stand up and I was holding on the back - on the trolley on which we place rolls normally.  I stay but my friends around me and both asked me, "Are you all right?"  I said, "Yes.  I feel pain in my right buttock" and they said, "Do you continue?"  I said, "I think I will continue.  Just 2, 3 minutes please."

   …

   Can you stand up and indicate where on your buttock it was hurting?

   H H JACKSON DCJ:  He's pointing to the right buttock just below the belt line.

   Now, did you keep working all of that day? --- No, Pain was strong and I feel some numbness in my leg and back.

   Numbness in your leg; which leg? --- Right leg.

   And your back; whereabouts in your back? --- That time, I didn't feel nothing.  If you can press me, touch me, I didn't feel - but no pain. 

   No pain.  Whereabouts in the back was that?  Whereabouts in the back? --- Low; low back.

   Perhaps you could stand up again and indicate to his Honour where it was in the back?

   H H JACKSON DCJ:  In the centre at the belt line.

   When you were getting pain down in your leg, where was that?  Perhaps you could indicate that as well? --- Pain in my right leg was up to my feet.

   Down to your feet? --- Yes.

   What was the pain you were getting at work?  That was in the right leg, was it? --- Complete right leg.

   In the front or the back? --- In the back to feet.

   So down the back leg? --- Yes.

   What time did the accident happen? --- About 10.30.

   How long did you keep working for --- I didn't work after the accident at all.

   Did you try to continue on with your duties after the accident? --- I stay maybe only 5, 10 minutes, I think, if I remember right, and my boss said, 'No, go home and take free - day off' and I said 'No, I will continue work.  I think I can' but just second I feel strong pain and after 10 minutes I didn't - - -

   So you then went to see Dr Cordova, did you? --- Yes.

   How did you get to Dr  Cordova's rooms? How did you get there?  Did you go by car, walk? --- Yes, by car.  One of workmate gave me a lift to Dr Cordova.

   …

   What day of the week did the accident happen? --- this was Friday."

5. Under cross-examination he agreed there was no cut to his clothing or wounding.

6. No doubt largely because of language communication difficulties, certain factual aspects of the plaintiff's history and of the details of the accident are a little unclear or are understood differently by different witnesses.  One example is whether in Bosnia the plaintiff was a working baker with his own business or merely an investor in a bakery business.  Another is whether he broke his fall in any way. 

Injuries - The Plaintiff's Evidence

1. The plaintiff was taken to see the doctor nominated by the defendant employer who suggested an x-ray and CT scan.  The plaintiff said that over the weekend he lay in bed in pain in the low back.  He saw Dr Cordova again after the weekend and was admitted to Mount Hospital on 21 November with strong pains in the back and numbness in the left leg from the front top down the front upper thigh.   At the Mount Hospital he was put under the care of Mr B Slinger, orthopaedic surgeon.  He remained in hospital for 10 days attempting hydrotherapy and physiotherapy.  After discharge from hospital he underwent physiotherapy treatment for some time and took Panadeine Forte and Panamax. 

2. He has been on worker's compensation from the time of the accident until trial.  He denied that he had suffered back pain prior to the accident.

3. During February and March 1996 a work rehabilitation trial was arranged but the plaintiff failed to complete this. Dr Cordova insisted that the plaintiff return to work for two hours per day four days per week.  The duties were to be very light, avoiding repetitive bending or lifting, lifting no more than 10kg and avoiding prolonged standing and sitting. 

4. Cross-examined, the plaintiff said he could not sit for more than 10 minutes at a time or lift the bin provided.  He could not work two hours per day. It seems he was walking with a stick.  However, he says he drove the 25km to and from work.  He lasted only two days but not the full two hours on either occasion, saying by the time he got home he was in pain, took medications and went to bed.  He agreed that after his discharge from the Mount Hospital and without medical advice he had acquired and used a walking stick. 

5. In March 1996 the plaintiff ceased to consult Dr Cordova and started to consult another general practitioner, Dr S Edwardes, in evidence giving his reasons as the distance he lived from Dr Cordova, his difficulty in driving and his wish to have access to a medical centre, including "laboratory, x-rays, pain specialist, specialist medical centre".  Under cross-examination it was put to him that by then he had engaged a solicitor who had shown him a report by Dr Cordova stating that his symptoms were out of proportion to what would be expected given the injury.   He agreed he had seen the report but said he did not change doctors because of it.  In February 1996 Dr Cordova wrote a note including "try to get out of the sick role mode".  The plaintiff said he did not see it, read it or have it explained.  Dr Cordova then recommended the plaintiff commence work on light duties for two hours per day four days per week with five minute breaks each 15 minutes. 

6. The pain had not improved.  Dr Edwardes referred him to a pain specialist, Dr Hamzah, who administered two injections at St John of God Hospital.  After the first he was given relief for about six weeks.  The second injection reduced his pain level for about five weeks.  Under cross-examination he agreed that after the first injection had produced what Dr Hamzah described as a "quite miraculous" recovery he had not contacted the defendant with a view to returning to work, although he said he was concerned not to lose his employment and to be able to support his family.  He explained that Dr Hamzah had told him to be careful and to avoid twisting.  He said both Dr Hamzah and Dr Edwardes had told him to use his walking stick. 

7. The plaintiff was involved in a motor vehicle collision on 15 May 1996.  It seems his vehicle was stationary on the freeway when it was struck from the rear.  His evidence, both in examination-in-chief and under cross-examination, seems to be that he did not know what had occurred and felt no impact, but perhaps language difficulties explain this latter evidence.  He agrees he suffered neck pain for five or six weeks but recovered.  Vehicle repairs cost about $750.

8. In May 1996 the plaintiff consulted Mr R Vaughan, orthopaedic surgeon, who told him to exercise, lose weight and adopt a positive attitude to return to work.   Again, under cross-examination, the plaintiff agreed that he had not contacted the defendant with a view to return to work, saying he first had to diet and undergo physiotherapy.

9. The plaintiff consulted Dr Hamzah on 30 May, following the motor vehicle collision of 15 May.  Dr Hamzah described him as walking very slowly and in considerable pain,  He denied in cross-examination having worse back pain after the collision although he agreed he suffered symptoms in the neck for a period.

10. In June 1996 Dr Hamzah's second injection again provided relief.

11. In March 1997 another work rehabilitation trial was organised but again the plaintiff failed to complete it.  On the first day arranged it seems he arrived without the usual protective clothing.  There is a dispute about the reasons he gave and whether his clothes should have been provided but were not available at the factory.  He thereafter worked a small number of hours on 5 days but says he had the same problems as during the trials a year earlier.  He said he sometimes had to stop on the drive home for a rest. 

12. The plaintiff saw Mr J K Ker in June 1997.  He agreed Mr Ker had advised him to lose weight.  He said he had weighed about 105kg when working for the defendant but by trial weighed about 125kg.

13. In September 1998 the plaintiff saw Mr N Batalin, orthopaedic surgeon, but as with the evidence of Mr Ker, the plaintiff denied being more mobile than he displayed on examination and exaggerating his symptoms and disabilities. 

14. The plaintiff says the back and left leg pain remain as before, that he takes three Panadeine Forte and three Panamax per day and that he is presently unable to work.  He agrees that on occasions he still drives a motor vehicle although only short distances, something I find surprising given his immobility.  He denied doing gardening or lawnmowing since the accident.  He says his sleep is interrupted.  He has given up playing the accordion, tennis and soccer, playing with his children, walking, riding a bicycle.  He said he had tried to diet and to walk without a stick.  He denied being able to move freely without it and being able to get in and out of a car freely.  He denied the evidence of Mr H John and Ms M Swindells suggesting the contrary.   He denied being able to shower without his wife's help.  He said he had undergone one MRI scan but was unable to undergo another. 

15. Notwithstanding all this, the plaintiff says vigorously that he will "never give up". 

MEDICAL EVIDENCE

Dr F Cordova

1. Two reports by Dr Cordova, general practitioner, dated 10 July 1995 and 25 January 1996, were tendered by the plaintiff by consent as Exhibits 11A and B.  A book of medical certificates issued by him was tendered by the defendant by consent as Exhibit 12.  The report of 10 July 1995 is a pre-employment report signed by a Dr P McGuire which shows normal examination except for the plaintiff being overweight, records "no significant history of back or neck injury" and finds the plaintiff fit for labouring work.  The post-accident report of 25 January 1996 reports the plaintiff as appearing to have pain out of proportion as to what one would expect from a soft tissue  lumbar sacral ligamentous muscular strain".  The medical certificates date from 17 November 1995 to 25 March 1996 when Dr Cordova notes that he told the plaintiff "he must return to rehabilitation for two hours a day because MRI OK".

Dr S Edwardes

1. Dr s Edwards, general practitioner, has treated the plaintiff since 27 March 1996.  She has seen him approximately monthly.  Her reports are Exhibit 5A-B and a bundle of medical certificates issue by her between that date and 3 March 1999 are Exhibit 6.  From the beginning he presented "as a man who looks like he has a lumbar pain, spinal pain, and he is not able to sit still for more, probably 10 minutes, and walking up and down, and with the shuffling gait and poor posture".   He was certified unfit for work, referred to Dr Hamzah and prescribed pain relief medications.  He also uses sleeping pills but anti-depressants are not required.  He consistently appears to be in pain and suffering lumbar muscle spasm, although Dr Edwardes agreed she did not always physically examine the plaintiff's back in that regard.  The attempts at work trials, weight reduction and exercise had not been successful.  The motor vehicle collision had caused a flare up of symptoms for a short time.

Dr H B Hamzah

1. Mr H B Hamzah, a consultant in anaesthesia and pain management, saw the plaintiff in April 1996 and thereafter.  His reports are Exhibit 3A - 3T.  He performed a dorsal ramus block at the L5/S1 level in April 1996 and the resulting pain reduction for about six weeks indicated that level as the most likely area of pain production.  The results in the plaintiff's movements were beyond what might have been expected medically.  He then recommended exercises and hydrotherapy for a graduated return or increase in exercise capability rather than an immediate return to work.  On 30 May the plaintiff indicated increased left sided neck pain and that he had been involved in a collision.  Another L5/1 facet joint injection on 12 June produced pain relief for about four or five weeks.  A rhyzolysis procedure was then recommended which it was expected would produce much longer term relief.  However, the plaintiff would not agree.  Dr Hamzah said he encouraged his clients to return to work and would not have discouraged the plaintiff from work trial.  He impressed the need for exercise on the plaintiff.  He accepted on the basis of the plaintiff's presentation that he was totally disabled. 

Mr R Vaughan

1. Mr Vaughan, orthopaedic surgeon, saw the plaintiff on 23 May 1996 and thereafter.  His reports are Exhibit 4A to 4G.  The plaintiff limped and complained of back pain and numbness in the left upper thigh.  The main pain area was left-sided in the 4/5 segment.  There was no evidence of nerve compression but simple degenerative change and a probable tear in the annulus as that level.  He was not able to say whether the tear was either the product of the accident or productive of symptoms.  The plaintiff was told to exercise, reduce weight and be positive about return to work.  There was no cervical problem.  The numbness problem would probably improve. 

2. In May 1998 Mr Vaughan reported:

   "I noted him walking slowly, using a stick but also the wall for support and almost lurching from chair to chair to the examining position.

   I went through the history of the injury when he attempted to unjam a coil and in the motion slipped, fell heavily in a tripping motion, hitting his right hip area, then falling flat to the ground and sustaining then back pain thereafter.  He said the pain was more severe in the left when he attempted to exercise and the leg also became numb and that has worsened.

   It was difficult to assess function, there being virtually no lumbar movement, virtually no straight leg raising, poor reflexes and generally if I may use one word to describe his whole presentation, depressive."

1. An MRI was ordered but could not be taken because of the plaintiff's claustrophobia but an extended CT scan revealed minor changes at L3/4 and L4/5 and quite marked degenerative change at L5/S1.  Mr Vaughan reported:

   "I was not of the view that there was any likelihood of improvement by surgery and so advised Mr Mocevic.  I concluded that there was the need for general care by his practitioner and particularly lifestyle change, improving exercise and perhaps consideration of pain blocks through one of the pain clinics …

   In terms of disability through the reported injury and based on symptoms without there being great significant changes on CT the loss for the lumbar spine through the injury process would appear to be of the order twenty per cent (20 per cent)."

2. In March 1999 Mr Vaughan reported, after seeing the plaintiff again:

   "There is little change in Mr Mocevic other than he probably moved a deal slower and appeared to have put on more weight though he said his weight has been stable, about 125-130kgs, but certainly much above his best weight which is in the order of 90kgs.

   Back motion was reduced, the reflexes however were present and there no loss of muscle bulk.

   I reviewed the reports of the past x-rays showing no evidence of instability or of neural compromise and my view still of non-surgical management.

   I have no answer for Mr Mocevic other than to empathise and re-empathise the importance of weight reduction and of increasing exercise and of reducing intake of Panadeine Forte - that is the theoretical position to achieve improvement but probably not the practical solution desired.  There is no quick fix as it were for Mr Mocevic and I doubt that even finalising claims will see any great improvement - I hope I am wrong in that but that would be my gloomy forecast."

3. Originally Mr Vaughan said he had thought the injury to be a lifting strain. However, he later realised it was caused by a fall of a type which could have caused the pain complained of.  There was no objective physical reason however, why the plaintiff could not have been rehabilitated, returned, or retrained into work.  Mr Vaughan made it clear that in assessing the plaintiff as suffering a 20 per cent disability of the lumbar spine he was including not just physical impairment but resultant changes in the plaintiff's "total being".  Mr Ker and Mr Batalin made the same assessment.

4. On the basis of the radiological findings and of an asymptomatic back prior to the accident Mr Vaughan thought the plaintiff had had a degenerative L5/S1 joint prior to the accident, rendered symptomatic by it.  Perhaps there is also some L4/5 involvement.  For whatever reason the plaintiff had adopted an invalid lifestyle from which Mr Vaughan saw little prospect of improvement.  But for that the plaintiff could be at work involving lifting and bending other than constant or heavy weights or jarring, vibrating work.  Given the abnormally degenerative disc for a man then in his late thirties, Mr Vaughan would have expected another event to have rendered the back symptomatic within, say, 10 to 15 years and the plaintiff to have been forced to a more sedentary life and work.

Dr J R Suthers

1. The defendant referred the plaintiff to Dr Suthers, an occupational physician, in August 1996 and again in February 1998.  Dr Suthers' reports are Exhibit 3A and B.   Like others he found the plaintiff to be obese and overweight and inappropriately using a walking stick.  He had suffered a relatively minor fall with a fairly minor injury leading, however, to a high and disproportionate level of disability.  He assessed the matter in 1996 thus:

   "There is little doubt that Mr Mocevic has chronic low back pain.  His history and clinical presentation are consistent within themselves.  I was interested to note the minor nature of the fall which, apart from the trauma of falling against the steel of the pressing machine behind him, produced an otherwise severe disability.  In trying (sic) understand his level of disability I cannot help but be drawn towards the difficulty the man must be having with settling in a new country, particularly as he has now been here four years and has only a slight feel for the language.  He clearly has had a lot of difficulty getting a job as a baker and for a man who was running his own bakery in his home land this must be a blow to his ego.

   It is unusual for facet joint irritation to go so relentlessly down the path such as he is experiencing and I suspect strongly that the above factors are contributing to his prolonged recovery.

   I found it interesting that even when he could stand upright, had a full range of movements and was essentially pain free after the injection by Dr Hamzah that he still required the reassurance of a walking stick.

   The impact of the motor vehicle accident in May 1996 is also difficult to assess given that he had minimal damage to the vehicle yet suffered soft tissue injuries in other parts of his body but none over the very vulnerable areas of his back.  For a man with such a vulnerable back I was surprised to hear that he did not suffer an acute exacerbation in association with the motor vehicle accident.  Rather, it was delayed some weeks.  It is interesting to note his version of the exacerbation of the pain and that reported by Dr Hamzah in his letter dated 4 June 1996.  Mr Mocevic was quite adamant that he did not suffer an exacerbation of the pain associated with the motor vehicle accident.

   With regard to his treatment I would support the continued use of anti depressants and would aim to get a substantial dose enough to control his anxiety and depression. …

   I am not sure of the value of hydrotherapy at this stage however he clearly needs to do some exercise and at least it keeps him mobilised.

   I support the proposal that he should go on a diet and I do not think he is gaining much out of taking eight Panadeine Forte a day.

   I would leave the decision about rhysolysis to Dr Hamzah. …

   WORK CAPACITY

   The man I saw today who struggled in on a walking stick has for all practical purposes no realistic work capacity with his current employer as I understand the present range of activities.  Likewise I believe he would be unsuitable to another employer on alternative duties for the same reasons.  I would be quite willing to review any reasonable work trial proposal but with his absence of English literacy and a physical disability such as he has I believe that placement would be quite difficult.

   OTHER COMMENTS

   It is now nine months since Mr Mocevic was involved in a relatively minor accident in which he undoubtedly bruised his right buttock and during which he sat down suddenly. … Mr Mocevic has chronic back pain from facet joint irritation which in itself is most unusual to cause this level of disability without other complicating factors.  I believe these factors should be addressed and ideally he should receive appropriate counselling from a Bosnian speaking counsellor…   I think it is important to address the non work place stressors.  If this cycle of events can be addressed then he will in fact make a good recovery particularly if he is able to lose weight as well."

2. In 1998 Dr Suthers reported:

   "PRESENT SYMPTOMS

   Mr Mocevic is currently aware of:

   • An enormous pressure in his back that feels as if a balloon is about to burst.

   • He cannot stand erect because of pain in the back and he is aware of numbness in the left leg.

   He tells me that if he bends forward his main problem is that he has to climb back up his legs or use a walking stick.  There has been no change over recent weeks.  When he wakens in the morning he has quite marked pain.

   … I understand his wife attends to the domestic chores and the children.  He is able to drive the car a short distance only.  He visits his brother in Craigie and on some occasions watches tennis.  It would appear that he has very little else in the way of relaxation.  He is unable to help his wife with the shopping.  I understand that he spends most of his time during the day lying in a series of bean bags that have been sewn together.

   The pain is aggravated by coughing, sneezing or even showering.  He is able to walk about 15 to 20 minutes before the pain in the left leg stops him.  Dressing is difficult for him and is usually done with the aid of his family.

   INVESTIGATIONS AND TREATMENT

   …  he has had a EMG in August 1996 which was reported as normal.

   His treatment at the moment is based on hydrotherapy 3 times a week. … he takes a series of medications which I understand is based on analgesics such as Panadeine Forte and Panamax, antidepressants and dieting medications.

   CLINICAL FEATURES

   Mr Mocevic weighed 131 kgs today  His posture was partly forward flexed.  He was unable to stand erect. When he walks he does not have a specific limp, even when walking without a walking stick.  He was again using a walking stick in his left hand whenever he is upright.  He had quite marked tenderness over the level of L5.  He was able to forward flex to the upper thighs and there was no measurable extension.  His lateral flexion was markedly reduced and he had very little rotation.  There was no specific scoliosis or spasm.  His couch test was positive.  His straight leg raising was 5° on the left and 20° on the right.  He could walk on his heels and toes, hip flexion was limited in the supine position to about 45° but was 90° when sitting.  There was no specific neurological deficit.

   DIAGNOSIS

   Mr Mocevic continues to suffer from chronic low back pain secondary to facet joint irritation.  Given the chronicity of his condition he is now starting to develop features of nonorganic back pain.

   He has a left neuralgia paraesthetica and he is also suffering from obesity and depression.

   PHYSICAL VS PSYCHOLOGICAL FACTORS

   Initially Mr Mocevic started with essentially a fall at work from which he has suffered chronic low back pain ever since.  I believe that any tissue damage done at the time would have come under control and his ongoing symptoms are now the result of secondary factors such as the psychological issues.  Given that he has reasonably well documented facet joint irritation from a radiological point of view and also bearing in mind the response to facet joint injection it is then very difficult to apportion which is having the greater impact on him at the moment. 

   WORK CAPACITY

   At the moment Mr Mocevic does not have any substantial work capacity.   He is not fit to return to his pre-accident duties.  It is unusual for someone with this sort of injury and pathology to be so severely disabled.  I acknowledge that he does have ongoing pain secondary to some underlying pathology, but it is in my opinion not sufficient to account for his level of dysfunction.  Rather, I would see that he has some capacity for work were he able to cope with the pain and deal with the psychological stressors.   Having said that however and whatever the cause of the underlying pain is, I believe that he is most unlikely to return to any sort of work at the moment.

   CAUSE OF THE ONGOING INCAPACITY

   In my opinion he is suffering from a degenerative process that pre-existed his injury and is now symptomatic.  As indicated above, there is good reason to believe that he has other underlying causes which may be the main reason for his ongoing incapacity.   These factors include the depression and the difficult surroundings that he finds himself in from a sociocultural and language point of view.

   FUTURE MEDICAL TREATMENT

   Mr Mocevic should continue with his hydrotherapy and medications …  I would encourage him to keep mobile and walk as much as possible and lose about 35 kgs in weight.

   Perhaps he would benefit from a few sessions of counselling preferably in his own tongue.

   PERMANENT RESIDUAL DISABILITY

   In my opinion Mr Mocevic has, when looked at solely from his present immobility, about 15% permanent loss of the full efficient use of his spine according to item 36A of Schedule 2 of the Workers' Compensation and Rehabilitation Act. Of that perhaps half is a result of the work incident.

   PROGNOSIS

   In my opinion it is in Mr Mocevic's interests to settle this claim as soon as practicable.  At that point I believe that he will be able to get his life back together again and pursue further employment.  In my opinion he will almost certainly improve thereafter to some extent, but how much residual chronic pain he will have only time will tell."

3. In evidence Dr Suthers added that given the plaintiff's ability to do some driving and to sit during consultations a graduated return to work programme with a view to full time alternative duties, even though associated with some pain, should be attempted.

Dr J. K Ker

1. The plaintiff first saw Dr Ker, a consultant physician in rehabilitation medicine, at the request of the plaintiff's then solicitors, in May 1997 and again in May 1998 and February 1999.   Dr Ker's reports are Exhibit 2A - 2C.  On initial examination he found:

   "… a quite massively built man, tall but clearly also overweight. He walks at all times with a stick in a forward stooped position and has profound difficulty in adopting an upright position.  He undressed and dressed again independently but with difficulty for the examination and moved in a restricted and cumbersome manner on and off the examination couch.

   I found that he reported generalised lumbar spine discomfort in the mid-line over the length of the lumbar spine, over the buttock and the left paravertebral musculature.  His back extension was grossly restricted.  He was unable to flex in the upright position but could sit upright on the edge of the couch whilst his legs were passively extended.  He resists in the supine position all straight leg raising above 30 degrees but in covert examination whilst seated on the edge of the examination couch his legs do approach the horizontal in upright seating.

   I could detect no specific neurological impairment in either lower limb and no definitive evidence of any nerve root tension signs.

   I reviewed this man's previous radiographs.  Initial radiographs of the lumbar spine from the 17/11/95 are reported as normal.  On subsequent CT scanning some osteoarthritic change was noted in the left L5/S1 facet joint.  No other abnormality was noted.  These radiological investigations were supplemented with magnetic resonance image scanning of the lumbar spine.  I note evidence of generalised disc desiccation in the lumbar discs, most noticeably at L4/5 and L5/S1.  This is reported by the radiologist as not disproportionate with his age.  There is evidence of a very minor area of increased signal in the L4/5 intervetebral disc on the left in a postero-lateral position, suggestive of a possible annular tear.  The degenerative change at the left L5/S1 facet joint was confirmed and also the evidence of minor degenerative change in the right L5/S1 and L4/5 facet joints.  No evidence of neural structure compromise was determined.

   …

   (The plaintiff) reported a persisting level of central and left-sided low back pain with intermittent pain radiation into the left lower limb.  As a result of back pain all his mobility and physical tolerances for standing and sitting are restricted.

   I believe that the source of your client's back pain is predominantly the facet joints at the lumbo-sacral junction to the left of the mid-line and possibly at the level above this.   This corresponds with the area of radiological change on his plain radiographs, CT and MRI scans and is confirmed by the two previous selective facet joint injections.  I believe that these facet joints have been rendered symptomatic in the fall that your client experienced in his work place on the 17/11/95.

   Your client's treatment I would recommend as follows:-

   (1)   If necessary the repetition of facet joint injections to provide interim pain relief.

   (2)   Further consideration of facet rhizotomy with a view to providing more long term pain relief from the lower lumbar spine.

   (3)   A sustained period of back education and exercise based rehabilitation management.  This exercise based rehabilitation management needs to be undertaken in an environment where this man has significant support.

   At the time of my consultation I detected a number of clinical signs and behavioural observations which suggested that your client was significantly restricted and to some extent presenting in a manner which would suggest some amplification of his physical disability.  I have no doubt that this presentation is in large measure affected by anxiety, both as to the extent and severity of his back pain, but also a concern to minimise any possible "hurt" of further injury.  In such circumstances treatment programmes with a behavioural component can successfully influence such pain behaviours.

   I would have thought that over the long term future there is every likelihood that these facetal joint changes may increase and that with time there will be added degenerative change in the lumbar spine.  This is in essence a progressive degenerative change.  The extent to which the injury has contributed to that process is I believe modest.

   …

   As Mr Mocevic presents to me, I found him unfit for all and every kind of work.  I frankly believe that before he would be able to consider any form of work, his pain behaviours would need amelioration, he would benefit from losing weight and he would have to develop physical capacity, whether in standing, sitting and walking, to be considered appropriate for any form of useful gainful work.

   Given your client's language restriction, I believe his opportunities when considered on a physical, communication and work skill basis, make the likelihood of returning to work quite remote.

   As indicated … a number of factors have clearly combined to render your client at the present time in my opinion unemployable.  In that sense there is in my opinion little doubt that his working life has been prematurely shortened.  I acknowledge that it has been the work accident of the 17/11/95 that has triggered this series of events.  I am clearly pessimistic that this set of circumstances can now be reversed."

2. In May 1998 he found "relatively modest change" and in February 1999 again the plaintiff reported no change in physical functioning.  Dr Ker reported:

   "Mr Mocevic continues to report pain on palpation along the length of the lumbar spine and over the right and left buttocks.  He is a massive man who remains overweight.  His spinal movements are grossly restricted and he has straight leg raising of no more than 40 degrees.

   He continues to use a walking stick for all ambulation.  I could not determine any objective evidence of neurological impairment.

   (He) reports the presence of continuing Lumbar pain which appears present every day.  He also reports bilateral buttock and posterior leg pain which is more intrusive and marked on the left than the right.

   Due to the consistent nature of his pain and the extent to which it disturbs his sleep I believe that this man has from time to time feelings of depression which do seem significant.

   Mr Mocevic presents in a manner which is indicative of persisting spinal pain.  He exhibits a series of established pain behaviours with limited movement, altered gait and poor standing posture.  These physical manifestations of pain significantly limit his function day by day. … he described how in almost every life situation his pain intrudes to such an extent that his day to day function is profoundly limited.

   …

   (He) remains unfit for all and every kind of work both now and in the foreseeable future."

3. Dr Ker recommended analgesic, anti-depressant and occasional sedative medications and future attendance at a therapeutic pool for limited stretching exercise and spine strengthening with ongoing contact with a treating general practitioner.

4. Giving oral evidence he confirmed, on the basis of the result of Dr Hamzah's facet joint injections and the objective pathological evidence, that there was some facet joint change in the low back to adequately explain central low back and left leg pain.  On the basis of an asymptomatic condition prior to the accident he assumed the fall had rendered the back symptomatic and that there may have been ongoing degenerative change triggered thereby.  He also expressed the view that, "over time, for a large person with established pathology in the facet joints of the lower lumbar spine undertaking labouring work, the likelihood is that those facet joints would in time have become symptomatic."   In terms of time, he thought this probably would have been within 10 years given the plaintiff's age.  He agreed the plaintiff's presentation was very bad given the nature of the fall and the minor degenerative change.  His pessimism about future improvement was,

   "… because I was confronted with a man who had had, from the date of his accident, disabling symptoms which had prevented all work.  His presentation to me was of a profoundly impaired person with prominent pain behaviours.  From the history, his level of functioning that he reported in the context of his family home indicated that he was living an extremely sedentary lifestyle.  In addition, this is a man who, when I saw him, had barely functional English conversation skills; work skills which were difficult to employ in Australia, and a history of pain over this period, so it really looks at the pathology, the individual's presentation, the consistency and length of symptoms, his level of work skills, his communication ability - I don't know of anybody like that who ever gets back to work.

   You saw him two times after that.  Is that correct? --- Yes.

   Was his symptom reporting consistent on the two subsequent occasions or not? --- In broad, general terms, yes.

   What sort of indicator is that consistency, if anything? --- I think that indicates that this man clearly has a series of symptoms which he experiences as real on a day-to-day, week-to-week basis."

1. There had been some English language improvement and more consistent coping skills but not much other change.  Based on the pathology he accepted a figure of 20 per cent impairment but added:

   "I don't think I'm able to say how much disability this man would have in the normal run of things and how much disability he has when we have added to his presentation amplification of pain behaviours in the examination situation.  My argument would be if we're really talking about disability, disability is about how this man lives his life; it's not what his x-rays are about, that's what impairment is about.  So I'm - sorry, that may not actually help you but I - that's the way that I would think about it.  But clearly I accept that some of the radiological pathology was present before the accident.  I would accept an impairment value of 20 per cent, but to be able to definitively determine when examining this gentleman what has been amplified and what hasn't, I don't think I can do that."

2. He agreed that the plaintiff's medication usage is modest, that there are inconsistent symptoms presented, symptom amplification, that the plaintiff is obese, without well-developed abdominal muscles, and has abnormal posture.  Use of a walking stick is inappropriate but may be a social marker of disability. 

   "Would you agree … that the role the accident played as I understand Mr Batalin to be saying, is that has stabilised and the ongoing problem is attributable to degenerative changes? --- That may well be the case, the ongoing problem being pain and limited spinal movement.  My difficulty is that before this accident, when we're suggesting that these degenerative changes existed, he didn't have pain and he didn't have limited spinal movement.

   Then Mr Batalin goes on to say that the current work incapacity is due to a combination of lack of fitness, weight problem and degenerative changes in his back.  Would you agree with that? --- Those are some of the factors.  Those are not the only factors.

   …

   He mentioned increased pain behaviour as well as a factor? --- Added to that … what was rendering this man to be unfit for work, I have indicated his lack of physical capacity, his limited work skills, the persistent and intrusive nature of his pain, his limited English language skills, his inability to compete in the open workforce for anything but physically demanding work.  So I think that if you are going to talk about what contributes to a person's incapacity for work you also have actually realistically have to look at the only kind of work they have ever been able to do in this country."

3. Asked about the work trial, Mr Ker said:

   "It has been my uniform experience in rehabilitation medicine that when a person presents with abnormal pain behaviour that return-to-work programs don't work. I don't prescribe them.  I believe they are a waste of time, because until the person actually wants to go to work or believes they have got the fitness to go to work there's not much point in doing them.  Yes, the fact that he came along, didn't do a great deal, but had pain, walked around and after an hour and a half of being uncomfortable and in pain in the workforce went home is entirely consistent with what I would have expected to happen in this situation."

Mr P S Hollingworth

1. Mr Hollingworth, a specialist in occupational medicine, saw the plaintiff at the defendant's request on 3 June 1998.  He was called by the defendant.  His reports are Exhibit 7A and 7B.  Mr Hollingworth took a history, which is rather different in some details than the evidence given by the plaintiff, and found on examination:

   "He weighs 131 kgs, is 181cms tall, which is almost double his ideal weight.

   He walked slowly and with a stick, leaning to the Right.  He kept getting up during the history taking.  All movements were very slow.  He can stand without the stick but when he does so he is leaning forwards, with flexion at the hips rather than the lumbar spine.

   He can flex to a level where the fingertips reach the knee but there is very poor extension and he shows the lumbo-sacral region as the site of his pain.  Lateral flexion is to a level where the fingertips reach the lower third of the femur.  Axial loading produced report of pain, with knee buckling and grabbing of his back.  Passive rotation was said to cause great pain.  Active rotation was quite limited.

   Getting on and off the couch, and changing position on the couch was apparently a very laboured process.  When he was laying prone there was some tenderness of L4/5, and over the Right facet joints.  The sacro-iliac joints weren't tender and because of his bulk I didn't even attempt to find the ischial tuberosities.  The femoral stretch test was negative.  I wasn't able to obtain either ankle jerks or knee jerks, and again I think this is due to his great size.

   Straight leg raising on the Left was to 30 degrees and on the Right 20 degrees, whereas he could sit on the edge of the couch with legs straight out at 90 degrees.  The abdomen is enormous but there are no palpable abnormalities and it is hard to say what, if any, muscle tone there is underneath.

   Testing sensation on the Left and the Right was equal, both anteriorly and posteriorly, and this is different from what others have found.  He says that in fact the altered sensation only occurs after he has been standing for a few minutes.

   I have detailed his complaints, also the fact that he shows positive Waddell signs, and inconsistencies in straight leg raising in different positions.  These are, in the first place, suggestive of a pain which can't have any organic basis, and the second inconsistencies would suggest for some reason, incomplete cooperation. 

   The diagnosis is that this man has had facet arthropathy in the lumbar spine which is being very much aggravated by his great obesity.

   Now that he knows what is involved with the rhyzolysis, he said he would go back to his GP and ask to be referred back Dr Hamzah, with a view to having this performed.  He also needs to lose weight, and he needs to be more active.  If he can get relief of the pain, that should both allow increased activity and decreased weight.

   It is of interest that a man of this great weight needs so little in the way of analgesia and he only takes one Panadeine Forte and one Panamax 3 times a day.  A very small dose considering the pain which is said to be disabling.

   I think it is his perception of his disability which is preventing him working, and I note that many of my colleagues have agreed that he is fit for a variety of lighter duties.  I would accept that at the present time he couldn't do very heavy work, partly because he is so unfit.

   …

   I think before saying what he will return to work as, it would be important to see the result of the rhyzolysis, his weight loss and the resulting decrease in his pain.  In theoretical terms there is no reason why this man shouldn't return to quite heavy work and the presence of some facet joint arthropathy wouldn't of itself prevent him doing heavy labouring work. Certainly I do not believe at this time, that this man is never going to return to gainful employment.

   I note that Mr Ker has said that he has very limited English.  In fact when he tries, he has perhaps much more than appears at first glance, and one interpreter was particularly good at not stopping answering in English where he obviously understood the questions.  I noted that Mr Ker also found inconsistencies when he was examining him, and agrees with me that the radiological evidence is not disproportionate for his age.  I am slightly more optimistic than he was, in that now that Mr Mocevic says he understands what treatment is involved, he certainly would like to try this."

2. Later Mr Hollingworth was referred to the report of Mr Batalin.  Mr Hollingworth reported in January 1999:

   "I have read the report from Mr Batalin, dated 10.9.98, and would agree with him that this man's main problem is his weight and the underlying pre-existing degeneration.  I think it is this weight, unfitness and degenerative changes, rather than an incident which occurred in November '95, which result in this problems.

   I note the very small amount of medication which this man was taking; one Panadeine Forte and one Panamax three times a day which, for a man of his size, is an extremely small dose.  It is always worrying when such a person, needing very little in the way of analgesia, is put onto a habit forming medication such as Morphia.  I cannot justify such treatment.

   I notice in the report from Dr Quintner, dated 28.10.98, he talks of a depressive episode in 1996.  It is of interest in that, when I asked Mr Mocevic about previous psychological and emotional problems, he specifically denied any.  I would be interested in further details of that because, certainly, opiate medication is not usually recommended in people with depression.

   I notice the inconsistencies when Mr Batalin examined him, but did not note any evidence in the report of Dr Quintner, to suggest  that he had looked for any inconsistencies.  This may be purely that he has not reported them.

   I would agree with Mr Batalin that this man needs to be put on an exercise programme and his weight reduced, and I would not agree that he needs opiates.

   Although reports talk about him being a baker prior to coming to this country, that certainly was correct in that he, for four years, ran a bakery with a staff of six, but it must also be remembered that he left school at the age of 19, and did two years in college, doing law; he, perhaps, sees himself as a person who should be doing work intellectually rather more stimulating than the sort of factory labouring which he was doing at the time of the incident in November '95.  I think this is something to bear in mind when he is trying to be rehabilitated."

3. He agreed the plaintiff suffered pre-existing degeneration at L5/S1 which the accident had rendered symptomatic and some left lumbar muscle spasm, but the degree of degeneration had not been modified or altered.  There were some kinds of work he should not do because of positional, rather than weight bearing, issues.

4. Mr Hollingworth attributed the plaintiff's inconsistent and non-organic pain symptoms and low medication use to his being in a position in a new country limited to labouring work and a perception of being unable to perform that work physically.  In fact, he agreed that the plaintiff, physically, was fit for a range of light labouring work although obesity was a problem.  He was able to do quite heavy labouring work although his obesity and the disc problem made that a high risk.  A graduated work return was appropriate.

Mr N J Batalin

1. Mr Batalin, orthopaedic surgeon, saw the plaintiff on 10 September 1998 and on 18 September 1998:  Exhibits 13A and B.  He reported:

   "Summary:

   Mr Mocevic is an overweight and unfit man with what I believe to be pre-existing and long standing degenerative changes in his lower lumbar spine.  Degenerative changes of a chronic nature were well evident in the original CT scan done on 17.11.95.  They were certainly confirmed by the MRI which illustrated that the patient has L4-5 and L5-S1 degenerative disc disease and facet joint degeneration.

   However, this does not explain the patient's numbness affecting the anterior proximal left thigh.

   I also note evidence of significantly excessive operant pain behaviour and documented considerable variation in clinical findings when using direct and indirect methods of assessment.

   …

   There is always a problem in attempting a retrospective diagnosis on an alleged incident which was stated to have happened on 17.11.95.  It is possible that in an unfit, overweight, patient with pre-existing degenerative changes, the stated incident could have produced strain aggravation of degenerative changes in the lower back region.  However, sufficient time has elapsed for such a strain to stabilise.  On the other hand, the patient does have ongoing degenerative changes which is more likely than not to contribute to ongoing symptoms.

   I note that the patient had only commenced this particular job four and a half months previously and this was his first job.  He is convinced that he is unable to carry on with any form of similar employment. I also note that there are other factors that contribute to incapacity including his weight and lack of general fitness as well as pre-existing degenerative changes in his back.  In view of some degenerative changes affecting L4-5 and L5-S1 levels I concur that it is wise for him not to subject his back to a heavy labouring occupation or work that will involve a lot of bending and heavy lifting.  He stated that his incapacity is related to a work incident but I have no way of confirming that.

   …

   As a general rule, in patients with such presentation, prolonged total inactivity is counterproductive.  On the other hand, rehabilitation to alternative sedentary or semi-sedentary occupation is often beneficial, provided there is co-operation on the patient's part.

   …

   Nevertheless, at the time of my assessment and based on clinical and radiological findings, I saw no contra-indication for this patient to carry on with selective work such as that of a clerk, gate keeper, slight storeperson (sic), sales assistant, telephone sales representative or receptionist provided he has suitable training. 

   It is always worthwhile to undertake graduated work return programme and this should be guided by the work rehabilitation team.

   …

   As indicated above, although one could postulate a strain aggravation of degenerative changes, it is hard to explain persisting symptoms.  Strain aggravation, in my experience, usually does not produce lasting symptoms unless there is demonstrable and significant evidence of further injury and I could not identify that in this patient.

   …

   If I was treating this patient my advice would include:

   a)     Consistent but gradual weight reduction programme.

   b)Graduated fitness programme which would include exercises designed to strengthen the abdominal and erector spinae muscles as well as the muscles in the lower limbs.  An easy way of achieving this would be to take up regular swimming.  I would avoid manipulative therapy. Occasional use of anti-inflammatory analgesics would be helpful.

   The patient's medications have been documented under the heading of "social history".  He told me that he takes Panadeine Forte 1 tablet three times a day and Panamax 1 tablet three times a day  Both medications are anti-inflammatory analgesics.  It is difficult to predict the duration of such medications.  My advice is that they should be used on an intermittent basis.

   I do note some disability in this patient but objective assessment of that was difficult.  Using indirect and more reliable methods of assessment I noted that he had about 20% disability, expressed as percentage disability of the thoracolumbar spine as a whole.  To be fair to all parties concerned I felt that at least half of that was due to pre-existing factors."

2. He explained that of the 20 percent disability 10 per cent was the result of pre-existing degenerative changes.  Giving oral evidence Mr Batalin expanded on his written reports.

3. Formal assessment of the thoracolumbar spine showed 90 per cent  restriction of movement whereas indirect assessment methods showed only about 20 per cent.  There was no observation of localised weakness or muscle wasting.   X-rays, CT scan and MRI "don't really show much in the way of bony or significant joint injury.  They do show some degenerative changes in the lower back, particularly the last two discs", but similar pathology would probably be found in most individuals of the plaintiff's age as might occur with the small annular tear which is consistent with the degenerative change.  He was asked to comment on Mr Vaughan's evidence:

   "I think Mr Vaughan's view was, from memory, basically that it may be that these pre-existing degenerative changes had been asymptomatic up to the point where the man fell and that this has triggered symptoms.  Now, he is not saying the symptoms are anything like the presentation, but some symptoms for some time? --- Yes sure.  I respect Richard's view and equally I'm sure he respects mine.  I suppose the slight difference is that of emphasis.  Certainly the difficulty that we face as surgeons all  the time is that the majority of people have degenerative discs and some changes progress as we get older.  Some individuals may have symptoms; others do not.   Superimposed on that, a lot of events in our environment which can be interpreted as contributing or possibly aggravating that.   It is indeed possible that in a patient with pre-existing degenerative changes there was a further strain aggravation which can contribute to some of the changes observed in the MRI but, to be fair to all parties concerned, it is equally possible that such findings would be purely attributable to degenerative changes and spontaneous progression of such degenerative changes.  One would tend to lean towards cause and relationship  if a patient had no symptoms at all prior to this and had significant symptoms following this.  There is another problem with that, is that even if there was a slight strain aggravation and degenerative, an acute tear superimposed on degenerative  changes, common findings clinically repeatedly are that patients will have pain initially and within a few months they tend to settle and resolve.  It's very unusual for small changes like that to produce lingering and severe disturbing symptoms and signs."

4. Mr Batalin therefore differed from Mr Vaughan in finding any causal relationship between the accident and the symptoms.  In any event, he also found that there was a high chance of other relatively minor events causing such symptoms relatively soon in the plaintiff's life given his degenerative spinal changes, weight and lack of fitness.  Nor was Mr Batalin confident in predicting the plaintiff's future.

OTHER EVIDENCE

Ms M J Belger

1. The plaintiff was referred by the defendant in 1977 to Ms Belger, an occupational therapist then employed by Western Rehabilitation.  Ms Belger carried out workplace investigations, Exhibit 10, and devised two return to work programmes in conjunction with the defendant company which was keen to find suitable work duties:  Exhibits 9A and B.  An earlier return to work programme had been attempted but that was arranged by another firm.  Mr Belger's account of what occurred differs a little from the plaintiff's.

Mr H M John

1. Mr H M John, the defendant's group payroll and human resources administrator, produced the company's work place light duties record relating to the plaintiff's work trials:  Exhibit 14A-G.  He confirmed that a range of duties had been available for the plaintiff. 

2. In addition he gave evidence of two incidents on 14 March 1997 and shortly after.

   "Did you ever make any observations of Mr Mocevic while he was at your workplace? --- Yes.  He used to walk with a very heavy limp with a cane and it struck me as strange one day as I was driving in to the office.  I wasn't really looking out for him and as I drove in I saw him stepping out of a car with a little bit of ease.  The only reason why it struck me as strange is because I have had a bad back myself and I used to struggle getting in the car.  I never thought anything of it, so subsequently later on, I think about a few days after that, I was out there and he happened to be walking towards his car and he seemed to get into his car with a little bit of ease.

   When you say "a little bit of ease," was there any contrast between the way he got into his car and the way he walked normally around the - the way he walked usually around the factory? --- Quite a significant difference, yes.

   In what way was - what did you observe that was significantly different? --- Well, as opposed to struggling or hanging onto the door and the edge of the door and the window and sort of sliding in, he just moved in without much problem at all.

   How did he walk otherwise? --- With a very heavy limp. 

   Apart from the limp, did he walk fast, slow? --- Very slow.

   Did he walk in an upright way or a bent over way? --- He tended to favour one side and he couldn't walk for great distances.  He had to stop and lean against the wall and about 25, 30 metres he would stop again.

   …

   What particularly made you notice him getting into his car? --- I happened to be out there.  I wasn't exactly looking out for him but it just seemed strange that he could move with such ease."

1. He was cross-examined about this.

   "I think that one morning you were coming to work and you saw Mr Mocevic get out the car "with a little bit of ease," was your ‑ ‑ ‑? --- Yes.

   'With a little bit of ease,' is not the same as with complete ease, is it? --- That's right.

   You know the difference? --- Yes.

   So he was showing some restriction.  Is that correct?  --- That's right.

   Likewise, I think was it the next day you saw him, or later? --- I'm not certain.

   Later, okay, but sort of within a few weeks or a week or so.  Anyway, they were close together in time.  All right ?

   …

   So this would be over this week or so that he was there.  On another occasion you saw him getting back into the car and once again with a little bit of ease, showing some restriction.  Do you agree? --- Yes.

   …

   The second occasion when you saw him getting back into the car, I'm putting to you that the manner in which  you saw him walk out - presumably limping,  you know, to one side - you felt that the way in which he got into the vehicle was freer than you would have expected given the way he was walking ? --- That's correct.

   But still with some restriction, some hesitancy, for example? --- Not whilst he was getting into the car, no.

   But certainly not as easy as you would expect a person without any injury to have got in, for example? --- That's reasonable, yes.

   …

   Apart from those - once getting out of the car and the other time getting back into the car - he presented in a very sick condition I suppose in terms of his back.  You would agree with that? --- Whilst he was walking, yes."

Ms M Swindells

1. The plaintiff was also referred to Ms M Swindells, an exercise physiologist employed by Western Rehabilitation.

2. The plaintiff presented at her structured hydrotherapy exercise programme in May and June for three days each week, sessions being 20 to 40 minutes long.  He presented with "a lot of pain behaviour … he was very pain focused and it took him a lot of time to get through the exercises".

3. She was asked:

   "Did you have any occasion or reason to doubt Mr Mocevic's - the seriousness or the extent of the pain or restriction that he complained about? --- I did have one instance.

   What was that based on?  What observation did you make? --- It was based on an observation.  Mr Mocevic had told me that he had been driven to the pool by a cousin because he was in too much pain to drive.  I observed him leave the centre, hop in his car and drive out of the centre.

   In what manner did he leave the centre?  What demeanour did he have? --- He walked to his car slowly with a stick and then drove out.

   In what manner did he drive? --- Normally.

   All right.  Was his manner of driving consistent with his demeanour that you observed either walking across the carpark or in the course of other times that you saw him? --- No.  I don't believe it was because he did drive over a speed bump at a fairly fast pace.

   Did you take any action about that or did you just leave it be or did you make any note of that observation? --- I did make a note of that in my report to the case manager.

   Why did you make a note of it? --- I thought it was noteworthy.  I thought it was worth bringing to her attention."

4. A copy of the note to the case manager is Exhibit 16:  it reads:

   "Lisa,

   Nenad told me his cousin had driven him to review as he can't drive due to pain, however, he left the pool and went to a car unoccupied by anyone else.  Drove out of carpark - quite fast over the speed bumps???"

5. She added in evidence that the vehicle had not slowed.

6. Mr Pratt for the plaintiff tendered a number of photos of the speed hump:  Exhibit 15.  Ms Swindells agreed she neither knew the vehicle's speed nor the dimensions of the speed hump.  She added in re-examination:

   "You were asked about the note that you made of your observation and that you put on the Western Rehabilitation file.  Did you have a habit of making notes like that or was that one of the only times you ever did it? --- That's one of the few times that I had done something like that.

   Why did you do that on that particular occasion? --- Because I thought that it was noteworthy for the case manager to be aware that I had observed that because it was not consistent with the pain behaviour and it was also - I had been told that Mr Mocevic had been driven to the pool by a cousin and that proved not to be the case, and that was actually why I wrote the note."

PRINCIPLES AT ISSUE

1. This trial raises a number of legal issues to be addressed.

2. The plaintiff's claim is subject to the provisions of ss93D and 93E of the Workers Compensation and Rehabilitation Act 1981 which provides by s93D:

   "(1)Damages can only be awarded if the disability results in the death of the worker or it is a serious disability.

   (2)A disability is a serious disability if, and only if -

   (a)the degree of disability would, if assessed as prescribed in subsection (3), be 30% or more; or

   (b)the future pecuniary loss resulting from the disability is of an amount that is at least equal to the prescribed amount."

3. Subsection 2(a) is not satisfied.  The prescribed amount at the time of trial was $106,382.  As from 1 July 1999 it increased to $109,650.

   "… 'future pecuniary loss' means pecuniary loss other than that which has already been incurred at the time when the amount of that loss is required to be determined by a court;"

4. By s93E, in addition,

   "(1)The amount of damages to be awarded for non-pecuniary loss is to be a proportion, determined according to the severity of the non-pecuniary loss, of the maximum amount that may be awarded.

   (2)The maximum amount of damages that may be awarded for non-pecuniary loss is (now $219,000), but the maximum amount may be awarded only in a most extreme case.

   'non-pecuniary loss' means -

   (a)pain and suffering;

   (b)loss of amenities of life;

   (c)loss of enjoyment of life;

   (d)curtailment of expectation of life; and

   (e)bodily or mental harm."

5. The defendant's case, essentially, is that the plaintiff before coming to Australia, had not engaged in heavy physical work and that since emigrating here has only worked for 4½ months, that being with the defendant.  He had a degenerate low back condition which he says was asymptomatic.  He suffered a minor fall in 1995 which caused little injury.  He has exaggerated his injuries and disabilities, changed his doctor to avoid criticism, has feigned any attempt at work rehabilitation, has not exercised or controlled his diet, has minimised the effects of a motor vehicle collision in May 1996 and has engaged in inconsistent behaviour when not aware he was under observation, both during medical examination appointments and elsewhere, and that he has misrepresented the medical advice he has had.  Certainly he has engaged in medically inappropriate behaviour such as use of a walking stick and use of very low levels of medications relative to his claimed symptoms.  Ms Mangan also says his non-medical behaviours are inconsistent, such as driving a car and giving evidence for several hours, and yet failing to complete the most modest of work trials. 

6. Ms Mangan argues that, first, the plaintiff is guilty of conscious malingering and exaggeration and, secondly, that whilst the defendant must take the plaintiff as it finds him in a physical sense, it is not responsible for those parts of his behaviour which are the result of social and cultural factors, other than the development of recognisable psychiatric illness.  Whilst some of the medical evidence makes reference to the plaintiff being depressed, that is not used in its special psychiatric sense and there is no real clinical evidence of it.

7. Ms Mangan then takes the further position that even if some future economic loss flows from the accident, given the plaintiff's personal and social circumstances, this would be narrowly circumscribed by the inevitability of other events similarly limiting his working capacity and life.

8. In Ivkovic v Rinaldi [1980] 25 SASR 516, White J said:

   "The trial judge must walk the tight rope between compassionate understanding and alertness against fraudulent claims.  I do not resile from what I said in Donjerkovic v Adelaide Steamship Industries Pty Ltd (1979) 24 S.A.S.R. 347. On the contrary I reiterate what I said there:

   'I do not think that the law requires from this plaintiff the objective standard of fortitude of 'the reasonable man' nor the clear perspective of such a man standing on his feet in the real world.  Nor do I think that the law can afford to pander entirely to the subjective standard of any particular victim and any distorted perspective which his psychologically disturbed condition conjures up as the standard of behaviour which he ought to follow.  I think that the law requires some intermediate standard of fortitude and reasonableness; on the one hand, allowing fully for his personal idiosyncrasies and the effects of the accident thereon when assessing his credibility (including the presence of any conscious exaggeration); and on the other hand, when assessing the reasonableness of his efforts to mitigate his damage, allowing for his personal idiosyncrasies and the effects of the accident thereon, but only to some extent, while at the same time requiring some objective standard of reasonableness from him.    By introducing an objective element, some brake is put upon the extravagance of unreal claims by persons inclined to exaggerate consciously and to profit therefrom.  I think that the legal process adopts a more generous approach in the assessment of credibility than in assessing the plaintiff's efforts at mitigation."

9. In Russell v Ciesielski, unreported, FCt SCt of WA; Library No 9801622; 1 May 1998, Ipp J under the heading "The effect of the pre-existing condition:  the relevant principles", said:

   The principles to be applied, when it is not possible to ascribe with any accuracy the extent to which different causes each contribute to a plaintiff's ultimate condition, were discussed very recently in Elders v Devereux, unreported; FCt SCt of WA; Library No 980183; 9 April 1998 and it is unnecessary to refer again to the several authorities mentioned in that case.  It is sufficient to point out the following.  A pre-existing condition may give rise to the possibility that the plaintiff's ability to work would have been reduced, even had the defendant's negligent act not occurred.  Further, the pre-existing condition may also give rise to a susceptibility to further injury, again without the defendant's negligent act having occurred.  In addition, other causes entirely unrelated to the defendant's negligent act may have contributed to the plaintiff's ultimate condition.  Appropriate allowances must be made for all these contingencies:  Wynn v New South Wales Insurance Ministerial Corporation (1995) 184 CLR 485; Malec v J C Hutton Pty Ltd (1990) 169 CLR 638; Wilson c Peisley (1975) 7 ALR 571. A useful statement of the required approach is to be found in Newell v Lucas (1964-5) NSWR 1597 where Walsh J (with whose judgment Hardie and Asprey JJ agreed) said at 1601: 'It was, therefore a case in which the appellant could not be called upon to provide compensation for the whole of the adverse effects upon the respondent of the condition in which this part of his back was at the time of the trial. In was said, in relation to a somewhat different problem, in Neall v Watson (1960) 34 ALJR 364 at 375: 'A defendant is liable only for the harm his negligence causes.' In the recent case of Australian Aluminium Co Ltd v Goulding (1964-5) NSWR 1718 at 1731, I said, in reasons for judgement with which Macfarlan J agreed:

   'It is true that the defendant must pay for the consequences of the injuries inflicted by him, although these consequences may be more serious than they would have been but for the pre-existing condition of the plaintiff.  But a comparison must still be made between the condition of the plaintiff as it was prior to the injuries and his future industrial and other prospects in that condition, and his condition after the injuries and his prospects in that condition.'

   It is, in my opinion, clear that a proper assessment of damages required that a judgment should be made as to the worsening of the respondent's condition which would have probably occurred if he had not had this accident and as to the effects which this would have had in creating, because of pain, the kind of employment difficulties of which he was complaining.'

   In Purkess v Crittenden (1965) 114 CLR 164 Barwick CJ, Kitto and Taylor JJ at 168 explained that Watts v Rake (1960) 108 CLR 158 had proceeded upon the basis that:

   '[W]here a plaintiff has, by direct or circumstantial evidence, made out a prima facie case that incapacity has resulted from the defendant's negligence, the onus of adducing evidence that his incapacity is wholly or partly the result of some pre-existing condition or that incapacity, either total or partial, would, in any event, have resulted from a pre-existing condition, rests upon the defendant.'"

General Damages

1. I find that the plaintiff was suffering prior to the accident on 17 November 1995 an asymptomatic but degenerative lower spinal condition which was rendered symptomatic by a minor fall in the accident.  The normal expectation would have been for him to suffer relatively short-term symptoms of a minor or moderate scale.  From an early stage however, the plaintiff adopted an invalid role which has become an entrenched behaviour but which is clearly totally out of proportion to his physical state.  This is compounded by the fact that he has become extremely overweight and unfit.  There is also evidence that I have no reason to doubt which suggests that both whilst in medical consultation and at other times the plaintiff has unwittingly exhibited a considerably freer range of behaviour than he exhibited in court and whilst under observation.

2. Allowing for the impact of family, social and cultural pressures no doubt explains much of this but in my view does not render the defendant liable in damages beyond what the injuries and their consequences would otherwise require, taking into account the plaintiff's circumstances, although the assessment exercise becomes more difficult by reason of the need to disentangle the various factors.  Under the head of general damages I allow $17,500.

Past Economic Loss including Loss of Superannuation Benefits and Interest

1. It is agreed that the plaintiff's average pre-accident net wage amounted to $450 per week, including overtime.  Since the accident he has received worker's compensation insurance at the net rate of $410 per week.  From the accident to the trial the defendant has paid superannuation contributions it seems.  From 17 November 1995 to 22 March 1999 he received weekly payments of $74,157.51, together with statutory allowances of $26,806.50, a total of $100,964.01.  In closing, Mr Pratt for the plaintiff abandoned any further claim for past economic loss.

2. I must take into account under this heading not merely the chance that the plaintiff's pre-accident lower spine degeneration would have been rendered symptomatic by another event, and the effect on his inability to work of his general unfitness and obesity, but the real question of the extent to which he is and has been able to work but has failed to do so for other reasons than physical disability.  Even disallowing the factors mentioned, the medical evidence suggests that but for his adoption of the invalid role, which includes the inappropriate use of a walking stick, the failure to adopt medical recommendations as to weight, exercise etc. and what I find to have been failures to realistically address work trials, and which may be both a social response now entrenched although with possible conscious exaggeration, the plaintiff could perform suitable light labouring work.  I allow loss of earnings therefore on a global basis for a period of six months from the accident, a period I regard as generous.  I allow $11,700.

Future Economic Loss including Superannuation Benefits

1. The plaintiff claims future economic loss including loss thereof to age 65, at which time he says he intended to retire.   I do not doubt that the plaintiff is presently unfit for heavy labouring work and that he is psychologically unfit for any work.  Given his invalid behaviour and general obesity and unfitness, as well as his limited skills and limited English, it is unlikely he could obtain and retain employment.  He does objectively also suffer a degenerate lower spine which, given his present age, renders him unsuitable for heavy or repetitive labouring work which would be done at a high risk of exacerbating previous symptoms.  However, I am not satisfied that any of this is or could be regarded objectively as the result of the accident the subject of these proceedings. 

Gratuitous Services - Past and Future

1. In closing Mr Pratt abandoned any claim for gratuitous services given the statutory threshold and lack of evidence.

2. It is agreed that each visit to a general practitioner costs $36.  It is agreed that the cost of 100 tablets of Panamax is $6 and that the cost of 100 tablets of Panadeine Forte is $44.25.

3. The rate of travel is agreed at 25 cents per kilometre. 

4. In closing Mr Pratt for the plaintiff abandoned any claim for future special damages by way of specialist medical treatment or exercise programmes.

5. I allow $1,000 for past medications and medication consultations.

Conclusions

1. For the foregoing reasons, I assess damages as follows:

General Damages	$17,500
Past Economic Loss	$11,700
Future economic loss including loss of superannuation benefits	-----
Past medications and medical consultations	$1,000
Total	$30.200