Morris v Cartwright McCallum Enterprises

[2009] VCC 929

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT WARRNAMBOOL

CIVIL DIVISION

Case No. CI-08-05650

KEVIN JOSEPH MORRIS	Plaintiff
v
CARTWRIGHT McCALLUM ENTERPRISES	Defendant

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JUDGE:	HIS HONOUR JUDGE BOWMAN
WHERE HELD:	Warrnambool
DATE OF HEARING:	29 & 30 July 2009
DATE OF JUDGMENT:	17 August 2009
CASE MAY BE CITED AS:	Morris v Cartwright McCallum Enterprises
MEDIUM NEUTRAL CITATION:	[2009] VCC 0929

REASONS FOR JUDGMENT

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Catchwords: Accident Compensation Act 1985 – s.134AB(38) – back injury which is difficult to diagnose – application for leave in respect of pain and suffering damages only – credit and reliability of the plaintiff – extent of consequences – whether burden of proof has been discharged – factors to be considered.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr D Brookes SC	Stringer Clark
with Mr N Bird
For the Defendant	Mr P Scanlon QC	Lander & Rogers
with Ms F Ryan
HIS HONOUR:

General background

1 This matter comes before me by way of an application pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985, hereinafter referred to as “the Act”.

2          Whilst nominally this application was for leave in respect to both pain and suffering damages and pecuniary loss damages, Mr Brookes, on behalf of the plaintiff, indicated at the outset that the application would not be pursued in respect of economic loss, and that aspect of the application is dismissed accordingly. Leave is sought solely in respect of pain and suffering damages. The plaintiff relies upon paragraph (a) of the definition of “serious injury” contained in s.134AB(37) of the Act. The injury relied upon is one to the low back.

3          I will not set out here the numerous authoritative decisions of the Court of Appeal which are relevant. The specific injury occurred on or about 8 November 2004. There was no argument but that the plaintiff bears the burden of proof in this matter.

4          Mr D Brookes SC, with Mr N Bird of counsel, appeared on behalf of the plaintiff. Mr P Scanlon QC, with Ms F Ryan of counsel, appeared on behalf of the defendant. The plaintiff gave evidence and was cross-examined. The balance of the evidence was documentary in nature and was tendered by consent, which was a most successful and cost-effective manner in which to run an application such as this. In addition, counsel made thorough and very helpful submissions.

Factual background

5          The following findings of fact are made for the purposes of this application and are not intended to be findings which are in any way determinative in relation to issues of negligence, the quantum of damages, entitlement to statutory benefits and the like.

(i) The plaintiff

6          The credit and reliability of a plaintiff is important in all cases. As shall be emphasised, it is of particular importance in a case where there is little by way of radiologically confirmed pathology, no referral to a specialist, and no specialist treatment. The reliability of the plaintiff’s evidence, both in affidavit form and from the witness box, becomes even more critical. Thus, the accuracy and reliability of the plaintiff’s evidence in the present case is a major issue.

7          I remarked during the conduct of this matter that some of the evidence which the plaintiff gave seemed peculiar and that at times he gave it in an odd manner, even at times with strange facial expressions. That continues to be my impression. I did not form the view that the plaintiff was a reliable witness. Whether it be because of guile, as asserted by Mr Scanlon, or whether the plaintiff was, in fact, a simple man of average or lower than average intelligence, as asserted by Mr Brookes, the end result is that I do not regard him as being a witness who gave accurate and reliable evidence on all occasions or in relation to some issues of significance.

8          There were a number of areas of evidence in which the plaintiff’s accuracy and reliability were tested, and in at least some of these were found wanting. I shall deal with such areas in turn.

(a) Drag racing

9          A particularly notable example of this lack of reliability is as follows. The plaintiff swore an affidavit on 23 October 2007. In the witness box, and on oath, he adopted it as being true and correct. Paragraph 10 of that affidavit reads as follows:-

“I am also limited in activities such as cutting firewood, hunting deer and driving a sports race car (1976 Holden Torana). It is registered and I used to race it, but I do not do so now because I cannot handle the maintenance which is required to be performed on it while racing.”

10        It became clear from evidence elicited in cross-examination that the plaintiff had driven his car (whether or not it be the same one as referred to in paragraph 10 of the affidavit) in a drag race either earlier in 2007, or in 2006, or both. Whether the plaintiff has competed in the race which is held at Heathcote at the same time each year (and he has already competed in this year’s race) on three or four occasions was a matter of some uncertainty, but either way he must have competed in the race prior to swearing the affidavit of 23 October 2007. The affidavit, sworn and adopted on oath as being true and correct cannot be right.

11        What became even clearer is that paragraph 10 of the affidavit is incorrect in an even more fundamental way. The plaintiff did not even commence competing as a driver in drag races until after the occurrence of the injury which he suffered in November 2004. He had not competed as a driver prior to that time. In other words, far from being forced to give away the racing of cars because of the injury, which is the clear inference to be drawn from paragraph 10 of the affidavit if it is not a clear assertion, the plaintiff in fact only took up driving in drag races after the sustaining of the injury. Whatever the explanation for it, it is clearly an unsatisfactory state of affairs when an affidavit adopted as being true and correct is, in fact, a considerable distance from the truth. I agree with Mr Scanlon that this aspect of the claim is not only relevant on the question of consequences, but is relevant in relation to the plaintiff’s credit or reliability.

12        The plaintiff did refer to participating in drag races in his most recent affidavit that being of 22 July 2009. In paragraph 8 of that affidavit he stated that he owned a 1977 Torana which he drove once a year in a quarter-mile street race. The fact that there has been reference to this in the most recent affidavit does not alter the fact that the previous affidavit was sworn by the plaintiff and was adopted by him on oath as being true and correct. No attempt was made by the plaintiff to correct it in evidence-in-chief, and it was only in cross-examination that the true state of affairs came to light or was clarified.

13        I would also point out that there is no reference to the plaintiff participating in drag racing in the affidavit of his wife sworn 15 September 2008. Paragraph 25 of that affidavit reads:-

“Kevin is still obsessed with cars. He still owns a Torana (albeit a different one), which he works on every now and then. I have observed however that he more regularly asks for help in completing tasks which he would have done by himself prior to the injury.”

14        Unless the plaintiff’s annual trip to Heathcote and his participation in the drag racing was kept a secret from his wife, which was not suggested and which seems highly unlikely, one might have thought that some reference to the drag racing would have appeared in the paragraph set out above. I further note that in the report of Mr Michael Dooley, orthopaedic surgeon, who saw the plaintiff on 18 May 2009, the following history is recorded:-

“In the past, Mr Morris said that he played touch rugby, went fox
hunting and was involved in car racing.”

15        Admittedly, the history does not go on to state “and he can no longer do these things”, but, unless Mr Dooley has recorded it incorrectly, the impression again given is that those activities were not current. I shall turn to the hunting shortly, but certainly the plaintiff asserts that he has been forced to give up touch rugby which he played before the accident, so that the history is at least correct in that regard. I do not regard the history taken by Mr Dooley as being as significant as the incorrect information in the affidavit, but it could be seen as at least creating an inaccurate impression.

16        I would further point out that there is no reference to the participation in drag racing in the report of Dr Davison, occupational physician, who examined the plaintiff at the request of the defendant on 3 March 2009. The history taken by Dr Davison is as follows:

“Mr Morris said that on the advice of his local GP, he had resumed his previous avocational interests of deer and (sic) hunting and restoring a Holden Torana vehicle. He goes hunting once or twice a month and estimates that he works on his car for 10 hours a month. He is also involved with the local custom car and bike show.”

17        Mr Kenneth Brearley, orthopaedic surgeon, has examined the plaintiff three times at the request of his solicitors, and at least two of those examinations, namely in September 2007 and July 2009, were carried out subsequent to the plaintiff’s driving in drag races. It is mentioned in neither report following such examinations. In the report of 21 September 2007, the history taken is that, “He remains unable to play any of his sports”, whilst in the more recent report of 1 July 2009, the only reference to sporting activities is, “He cannot play touch rugby or tennis which he did regularly”. I appreciate that the plaintiff, at examinations, may only answer the questions which he is asked, but there is a distinct aura of either a lack of candour or a lack of accuracy in the histories which seem to have been given to medical examiners.

(b) Hunting

18        Whilst it is not necessarily as unsatisfactory as the state of the evidence concerning the drag racing, I am also somewhat uneasy concerning the plaintiff’s hunting activities and his evidence concerning them. As with the drag racing, the strong inference to be drawn from what the plaintiff told Mr Dooley is that fox hunting, like touch rugby, was something that he had done in the past but no longer did. The plaintiff admits that he still engages in hunting. Whether or not it is fox hunting is not always clear, but what was apparently told to Mr Dooley does not smack of complete frankness. Indeed, it would seem that the plaintiff has been engaging in deer hunting and that this involves walking several kilometres.

19        In his original affidavit of 11 August 2006, which affidavit was also adopted as being true and correct, the plaintiff stated the following in paragraph 10:-

“Apart from not being able to go hunting, prior to suffering injury I
also used to play touch rugby …”.

20        I would then refer to the following extract from cross-examination at pages 17 and 18 of the transcript:-

“…after your injury in November ’04, that is, through ’05 and ’06, did

you continue to go hunting from time to time?---Yes.

At the time of swearing your affidavit in ’06 you would continue to go hunting from time to time, is that right?---Yes.

Yes, and so when you swore in your affidavit that ‘I am unable to go hunting’ in August ’06, that’s not right, is it?---At that time.

No, that’s not right because you were hunting through late ’04, ’05 and ’06, is that right?---Sort of.

Yes, and so at the time of swearing this affidavit you had been hunting, sort of, from time to time, out with your mates, hunting, is that right?---Sort of, time to time.

Yes, and to make a statement that ‘I am unable to go hunting’ in
August ’06 is just not correct, is it?---Sort of.

It’s either correct or it’s incorrect, it can’t be sort of. You’re either going hunting or you’re not and you say you were going hunting, is that right?---Sort of.

I’m going to put this book down, sort of. Now, have I put it down or not?---It’s sort of.”

21        I should add that the answer “sort of” had been given to a couple of earlier questions about other matters, and was given again shortly after the above exchange. At that stage, I advised the plaintiff that, whilst being in the witness box may well be difficult, the answer “sort of” did not help a great deal in conveying a picture as to what the true situation was. However, the unsatisfactory nature of the evidence concerning what was in the affidavit and the hunting activities can be gleaned from what has been set out above.

22        I would then turn to the following cross-examination and answers from pages 18 and 19 of the transcript:-

“How often are you able to go hunting?---How often?

Can you tell His Honour in the last year you have been hunting?
---Four times, approximately.

About four, right. In the year before that, about the same?---I honestly don’t remember.

Approximately?---Approximately? I can’t guess.

When you saw Mr Davison in February of this year did you tell him that … you’d go hunting once or twice a month? Did you tell him that?---Yes.

So rather than four times a year, it’s once or twice a month, is that right?---Yes.

(Skipping some questions.)

So the position is, is that in January of this year – I’m sorry, February of this year – when you were speaking in the present tense to Mr Davison, you’d been going hunting once or twice a month, is that right?---Sort of.”

23        Argument ensued as to whether or not there was a necessary inconsistency between the plaintiff stating that he had been hunting approximately four times in the last year, and what he had told Mr Davison, an occupational physician who examined him in February of this year, namely the following:-

“Mr Morris said that on the advice of his local GP, he had resumed his previous avocational interests of deer hunting and restoring a Holden Torana vehicle. He goes hunting once or twice a month and estimates that he works on his car for 10 hours a month.”

24        It was pointed out that, depending upon the date of resumption, the plaintiff may only have gone hunting approximately four times in the last year. Given that the plaintiff said, “Four times, approximately” and bearing in mind that Mr Davison carried out the examination on 2 February of this year, and that the plaintiff gave evidence that he last went shooting approximately six weeks prior to giving evidence, it may be that, mathematically, there is no necessary inconsistency between the two statements. However, not overly long after this argument was conducted, the plaintiff gave the following evidence at p.25 of the transcript:-

“So, how many times have you been hunting in the last 12 months?

---No, I can’t honestly give you a number of times.

And you couldn’t even estimate?---Shooting out of a vehicle on private property or - - -

I don’t care what it is; just hunting, going out and killing animals?

---Fourteen.

So that is once or twice a month, is that right?---No.

Fourteen is more than 12 – in the last 12 months?---Yes.

So it’s once or twice a month. It has to be?---Once a month, yes.

Yes, and that’s been the case for the last many years, is that right?
---Yes.

And you resumed your hunting – in fact, I suggest to you, you never gave up your hunting from the time when you had your accident when you were working with the defendant and right to the present time. You’ve never given it up, have you?---Yes.

What I’m suggesting to you is this, is that your hunting has been about once or twice a month, since you were injured, would that be right?---Yes.

So there’s been no change to the amount of hunting that you’ve done since the accident, is that right?---Form of hunting, yes.

There’s been a change in the form but there’s no change in the amount of times that you go hunting, pre and post accident, is there?---Yes.

Do you agree with me that there’s been no change since your accident as you already just agreed with me – there’s been no change in the amount of times you’ve been hunting? You’ve just said you agree with that, is that right?---Correct.”

25        Further questioning, with some confusing answers, followed. However, that evidence including the following:-

“So when you swore on your oath, it wasn’t true, was it?---Yes.

Yes, as in you agree with me?---Yes.”

26        Then were then further confusing answers in which the plaintiff agreed that when he read the affidavit, he knew it was false that he was unable to go hunting, but then resiled from that proposition and said that he was “lost”.

27        I have set out quite lengthy extracts from the cross-examination of the plaintiff in order to indicate just how difficult it was to extract reliable information from him. One conclusion that I have reached is that he has been hunting, and hunting regularly, since the accident. That hunting would seem to include deer hunting involving considerable walking. It may be that the hunting has taken on a different form, or that he no longer goes on long, overnight, hunting trips, but it seems clear to me that he has been hunting regularly and was so doing prior to swearing the affidavit of 11 August 2006.

(c) Analgesia, surgery and Mr Brearley

28        Another area which cast doubt upon the reliability of the plaintiff concerns his visits to Mr Kenneth Brearley and his reporting of same to his general practitioners, Dr Buckley and Dr Orgonas. The same issue involves his reporting to Dr Buckley of an attitude taken by the defendant’s insurer. The reports of each of these doctors contained references to a “Dr Beley” and a “Dr Berkley”, but there seems to be no doubt but that it is Mr Brearley to whom the plaintiff was referring, and that no doctors bearing the other names have seen or treated the plaintiff. The contrary was not contended.

29        In the report of Dr Orgonas of 17 December 2007, the following is contained:-

“His latest visit was on 12th October 2007 when he presented requesting stronger analgesia than Panadeine Forte. At that time he was using Panadeine Forte six to eight tablets per day. He claimed that Dr Kenneth Beley recommended stronger analgesia. I was not sure who Dr Kenneth Beley was so I requested a formal report before prescribing opiates. He promised that he will ask the doctor to fax a report which has not arrived to this day, so I just recommended again Panadeine Forte for the pain.”

30        This report of Dr Orgonas was included in material sent to Mr Brearley when he examined the plaintiff prior to reporting on 1 July 2009. Mr Brearley had the following to say:-

“I have noted the report of Dr Robert Orgonas dated 13th December 2007. I presume that he is referring to myself when he says that the patient indicated to him that I had recommended stronger analgesia. I do not understand this information for I would not make any recommendations regarding treatment or analgesia. I have had no request from any person with regard to sending a report.”

31        When cross-examined concerning this, the plaintiff’s evidence was that he could not remember whether Mr Brearley had in fact recommended stronger analgesia, or whether he had asked Dr Orgonas for stronger analgesia, telling him that Mr Brearley had recommended it. He agreed that it was information that appeared to have come from him.

32        The second aspect of possible discussions with Mr Brearely (or with some other medical examiner) that raises concern about the plaintiff’s reliability or accuracy relates to the prospect of surgery. The report of Dr Derek Buckley, also from the Otway Medical Clinic, of 3 July 2009 contains the following:

“He attended on March 13th and March 25th 2008. At that time he was attending Dr Berkley through CGU and had been told that he had a disc compressing a nerve. He was attending Physiotherapy for back exercises. He stated that back surgery had been recommended and that CGU would only fund cheaper surgery that he didn’t want.”

33        Again, there was no challenge to the proposition that the plaintiff has not been seen or treated by a Dr Berkely, and the plaintiff stated, when it was put to him that it was Mr Kenneth Brearley, that that sounded better. He also agreed that the doctor was at 15 Collins Street, Melbourne (the address of Mr Brearley’s rooms). He stated that what he had told Dr Buckley concerning CGU only paying for the cheaper surgery was something that was mentioned in a conversation but he could not recall with whom. He also said that one of the two types of surgery proposed was a fusion but he could not recall the other. He also stated that another general practitioner, Dr Michael Connor, may have recommended surgery, although nothing to that affect appears in Dr Connor’s report.

34        In any event, it was asserted from the Bar table by Mr Scanlon, and this was not challenged, that CGU (which is the relevant insurer) knew nothing about any request for surgery, had never been asked about it, and never had any discussion concerning it. Whilst this was “evidence from the Bar table”, it was a proposition that was not contested and no objection was taken to it. I might add that it seems logically consistent with the material placed before me.

35        In subsequent cross-examination, Mr Scanlon directed the plaintiff’s attention to passages from each of Mr Brearley’s three reports of 14 July 2006, 21 September 2007 and 1 July 2009 in which Mr Brearley has said, in essence, that there was no likelihood of the plaintiff requiring interventional or operative treatment. Mr Brookes objected to questions being put to the plaintiff on the premise that Mr Brearley had never mentioned the possibility of surgery because the following is said in his report of 20 September 2007:

“There is no indication for operative or interventional treatment at present and it is unlikely that it will be required in the future. If his condition were to deteriorate then he would require further investigation by MRI and at that time consideration may need to be given to surgery.”

36        Mr Brookes further suggested that this is the type of thing that Mr Brearley may have discussed with the plaintiff.

37        Whilst that objection undoubtedly had some merit in that Mr Brearley had patently reported as set out above, a number of difficulties for the plaintiff seem to remain. Firstly, it is to be remembered that Mr Brearley, in his report of 1 July 2009, asserted “I would not make any recommendations regarding treatment or analgesia”. I have no reason to doubt this. I consider it highly unlikely that Mr Brearley would have recommended surgery. Apart from Mr Brearley’s statement, this would seem likely as a matter of common sense. This was a situation where Mr Brearley was also observing that the plaintiff’s condition was stabilised with no significant pathology evident on radiological investigation. Further, Mr Brearley was stating that, if there was deterioration an MRI would be required. Given that background, as a matter or commonsense it seems highly unlikely that he would be discussing the possibility of fusion with a person he was seeing for medico-legal purposes.

38        Secondly, even if one assumed that Mr Brearley may have discussed surgery with the plaintiff, this does not explain the history apparently taken by Dr Buckley concerning CGU and the plaintiff’s statement that back surgery had been recommended and CGU would only fund cheaper surgery that the plaintiff did not want. It is to be remembered that, at p11 of the transcript, the plaintiff agreed that he did tell Dr Buckley this. In the evidence before me, there seems to me to be no foundation for the proposition concerning CGU and the cheaper surgery, and I do not accept it. Further, other than the remark of Mr Brearley’s which could be described as being extremely guarded and conditional, I can find no reference in any other medical reports to the effect that surgery is likely or recommended. There is no such reference in any of the reports from the three treating general practitioners. There is no treating specialist. Those examining on behalf of the defendant have certainly not recommended surgery. I simply do not accept that what was apparently told to Dr Buckley was accurate.

(d) Other matters affecting reliability

39        There are other instances of the lack of reliability of the plaintiff, and in some instances his evidence was almost peculiar. For example, at p46 of the transcript, his answer to questions concerning the use of his exercise bike and running machine for at least an hour a day was “not any more”. Within a few questions, he was agreeing that that answer was not true, but that he had not exercised in that way for the last week because of domestic problems regarding his young daughter. Again, the impression conveyed by the original answer did not sit comfortably with the answers subsequently given. Furthermore, in the context of the same passage of cross-examination, he said that the maximum run on which he would go would be from his house to the railway line and back, which is approximately 100 metres each way. I might say that, on the video shown, the distance appeared even less than that, although perhaps one has to allow for the foreshortening effect of film. Apart from the fact that it seems odd to go for a run of 100 metres and back, this does not sit particularly well with other evidence given by the plaintiff that he can jog on the running machine for between ten minutes and half an hour, and that half an hour of such jogging can equate to five kilometres. These are small peculiarities in the evidence but they underline the overall impression created, and as set out in the more significant credit or reliability questions referred to above.

40        Video film was shown of the plaintiff. It could not be said that he was doing anything strenuous when under observation, but it also could be said that he appeared to be moving normally. Whilst watching the junior football, (Auskick) he did perform a lengthy squat, something which one might have thought would cause him difficulties. Certainly he referred to squatting as something which caused difficulties. However, overall, the video showed someone moving in a normal fashion, including getting in and out of cars, but not doing anything particularly strenuous and, whilst attending Auskick, not participating in the kicking of footballs and the like.

41        I have dealt with my impression of the plaintiff and with credit and reliability issues at very considerable length. As stated, in a situation where there is no significant pathology and no treating specialist or, indeed, reference to a specialist for treatment, the word and reliability of the plaintiff becomes even more important than usual. Unfortunately, my conclusion is that the plaintiff’s evidence was not reliable.

42        More than one of the medical examiners had referred to the plaintiff as being pleasant, and that was the impression which I gained. However, the bottom line is that some aspects of his evidence struck me as peculiar, and the overwhelming impression was of a lack of reliability for reasons that were not always readily apparent.

(ii) The plaintiff’s background, training and pre-injury employment

43        As the plaintiff is seeking leave only in respect of pain and suffering damages, the amount of detail required under this heading is perhaps less than normal. Suffice to say that the plaintiff is aged 34 years, having been born on 17 April 1975. The plaintiff was educated to Year 11 at Colac Technical School and thereafter worked as a tyre fitter for some three to four years. He also worked as a kitchen hand, a door to door salesman (which he did not like), and did casual labouring jobs as well as working as a farmhand and in a timber mill. He also returned to tyre fitting at one stage. The defendant, Colac Otway Workforce, is a labour hire organisation, and his employment as a casual worker commenced with it on approximately 20 May 2004. It placed him at the Colac Abattoirs as a knife hand and “load out” supervisor and labourer. His work involved, amongst other things, a considerable amount of bending and lifting of quite heavy boxes of meat. He was performing work of this type when he suffered the relevant injury.

(iii)	The injury
(a)	The state of the plaintiff’s health prior to injury

44        The plaintiff has no history of any relevant prior injury. He suffered a fractured pubic ramus following a motor vehicle accident, and has also had knee injuries and an arm injury as a child. There is no suggestion that the injury suffered by him whilst in the course of his employment with the defendant relates to or flows from any prior incident of injury.

(b) The injury of 8 November 2004

45        The plaintiff suffered injury on approximately 8 November 2004. On that day he was lifting a box of meat weighing close to 30 kilograms. It was one of a series of lifts of similar nature. He was loading from waist height to a low pallet. On this one particular lift, he felt immediate back pain described as severe and reported the incident. It would seem that he missed some days from work – perhaps four – and his symptoms then improved before they returned. I presume he had returned to similar duties briefly, but, upon the return of the symptoms, he became unable to perform his normal duties. He first attended at the Otway Medical Clinic on 1 December 2004 where it was noted that he had tenderness of the paravertebral muscles at the L3/4 level, restricted anterior flexion of the spine, and no signs of nerve root compression. Diagnosis was of muscle sprain and back pain, and the plaintiff was prescribed Voltaren and Valium. He was referred for physiotherapy.

46        The plaintiff then had one month away from work at the end of 2004, and returned on limited duties which seemed to involve packing meat into bags. He did this for some three months, before going back “onto the knives” but did this was some difficulty.

47        He continued to attend on a regular basis at the Otway Medical Clinic. On 20 December 2004 he underwent a CT scan, having been apparently referred for this investigation by that clinic. That revealed no evidence of a significant focal disc protrusion, and indeed the examination was within normal limits. The report of Dr Orgonas of 13 December 2007 refers to a further CT scan of the lumbar spine on 9 May 2005 which again “showed no disc prolapse or back injury”. No such radiological report is in evidence, but I note that the report of Dr Connor, from the same clinic, of 14 May 2006 refers to a normal CT scan of 9 May “of this year”. The evidence before me includes a CT scan of 3 May 2006, apparently on the referral of Dr Madden (also of the Otway Medical Clinic). If this is the CT scan in question, the examination was again within normal limits. There is also an x-ray of the lumbar spine of 29 May 2006 at the referral of Dr Borsos, also of that clinic. The conclusion is again normal. The only other radiology report placed before me is that of 7 May 2007, this being at the referral of Dr Orgonas. This investigation involved both a CT scan and an x-ray. As explained in the report of Dr Orgonas, the x-ray was essentially normal and the CT scan showed a minimal annular disc bulge at the L4/L5 and L5/S1 levels but without significant involvement of the thecal sac or nerve roots. No lumbar disc protrusion or spinal canal stenosis was seen.

48        Between December 2004 and February 2007, when the plaintiff was first seen by Dr Orgonas at the clinic, he had presented there in excess of 20 times with flare-ups of back pain. When first seen by Dr Orgonas on 6 February 2007 he was complaining of daily pain which was occasionally severe. On examination Dr Orgonas found marked tenderness over the lower lumbar spine but normal movement. Panadeine Forte was prescribed and the plaintiff was advised to continue his swimming program and persevere with spinal strengthening exercises. It was shortly after this that the next CT scan was organised. Involuntary muscle spasms were also noted on occasions, and the plaintiff spent three days in hospital in May 2006 when he stated that he had bent over a dishwasher, his back went and he collapsed to the floor. I note that it is recorded in the reports from Otway Medical Clinic that the plaintiff was lying in bed reluctant to move but with no neurological abnormalities. It was at this time that his back was x-rayed, the result being normal.

49        During this time the plaintiff was continuing with light duties at work. For example, on 3 July 2006 the clinic noted that the plaintiff’s back pain was under control with the use of paracetamol and codeine and he was able to work on his new job in the box room. On 31 July 2006, the plaintiff’s back pain was reasonably well controlled and he stated that he was doing well in his work environment. A pattern of flare-ups and work on modified duties continued. For example, on 21 September 2006 the plaintiff was complaining of minor flares after heavy days. In October and November 2006 his work situation was satisfactory although he still had some pain.

50        In February 2007, the plaintiff’s position was made redundant and he was retrenched, although in his affidavit of 23 October 2007 he seems to express some doubts concerning the genuineness of this. He has referred to himself allegedly being described as a “Workcover hazard”, and to having a dispute with management in his role as a union delegate. I also note that he was the recipient of three written warnings in relation to his behaviour in the last years of his employment. Given that loss of earning capacity is not an issue, I attribute no significance either way to these issues which were raised.

51        More recent reviews at the Otway Medical Clinic, apparently by Dr Buckley, indicate that the plaintiff was still taking Panadeine Forte but that, as at 3 April 2009, his back pain was overall reasonably well controlled. Since March 2008 he has followed guidance in steadily reducing his need for strong analgesics, and Dr Buckley concluded in his report of 3 July 2009 by stating that, over the last 12 months, the plaintiff had attended the clinic significantly less frequently, and had steadily reduced his reliance upon medical attendance and strong analgesics.

52        Those at the Otway Medical Clinic have made no clear diagnosis as to the plaintiff’s injury. Dr Orgonas has referred to a strong family history of chronic back problems but also expressed the view that there was no serious underlying pathology as at 13 December 2007. Dr Buckley has referred to the basically normal radiological studies and to the fact that there were no reports available from spinal surgeons regarding their significance. However, the reports from the Clinic contain no clear diagnosis.

53        As stated, the plaintiff has had no specialist treatment. He has been reviewed by a number of experts for medico-legal purposes. Their diagnoses could be summarised as follows:

(i)	Mr Brearley (plaintiff) – mechanical lumbar pain and referred right leg pain presumably resultant from an intra-disc injury in the lower lumbar spine. This is set out in his report of 14 July 2006. In his report of 1 July 2009, the leg pain is described as spasmodic, short-lived and not interfering seriously with the plaintiff’s activities. The episodes of leg pain represent nerve root pressure effects but there is no objective evidence of radiculopathy.
(ii)	Dr Davison (defendant) – chronic pain in the lower back, the cause not being clinically evident. Possibly it may be due to an intra-discal lesion. He has only mild impairment of back function on clinical examination.
(iii)	Mr John O’Brien, orthopaedic surgeon (defendant) – current physical signs as at 5 July 2006 are very subjective and confined to some local upper lumbar tenderness. No neurological abnormality. “Thus the history and current physical examination plus the apparent normal investigations does not allow a diagnosis of any specific spinal pathology. One would therefore conclude the diagnosis is one of non- specific back pain … Certainly the clinical course in relationship to the obvious lack of spinal pathology is difficult to explain and does raise the possibility of non-organic factors influencing the course of the back pain… Certainly from my current examination of this patient there is noted to be good spinal function and I would have to conclude from a physical perspective there is little in the way of obvious disability”.
(iv)	Mr Michael Dooley, orthopaedic surgeon (defendant) – soft tissue injury of the lumbar spine, likely to have involved some aggravation of underlying degenerative disc disease. The plaintiff has developed a chronic pain syndrome in which the constancy and intensity of his ongoing pain are out of proportion to the soft tissue lumbar spine injury sustained.

54        Thus, it is hard to arrive at a firm conclusion as to the nature of the injury suffered. Physical examinations have produced fluctuating results, but overall cast no real light upon the nature of the injury. For example, at each of Mr Brearley’s last two examinations movements of the back have shown only slight restriction, straight leg raising has been to 60° on both sides, and reflexes, sensation and power have been normal. As one might expect with any back injury, other examiners have, on the particular day of examination, found differing levels of straight leg raising, flexion, extension and the like, although at recent examinations, such as those of Mr Brearley and Mr Dooley, power, tone, reflexes and sensation have been normal. Dr Davison found straight leg raising to be unrestricted and no evidence of neurological deficit in the lower limbs, whereas Mr Dooley found straight leg raising to be restricted to 50°. Of course, such a variation can occur from day to day, but the physical examinations do not assist in establishing a diagnosis and particularly one of a significant discal injury.

55        I am of the view that the plaintiff does suffer from some lower back pain. It may be that he has a soft tissue injury as diagnosed by Mr Dooley. There is no objective evidence of radiculopathy. There may be some nerve root irritation and it may also be that some non-organic features are present. The picture is confusing, but there is no evidence before me of any disc prolapse. There is no radiological evidence of any significant pathology. As shall be discussed, in the opinion of the experts there remains a considerable capacity for employment and other activities, but with some restrictions. An injury in the nature of soft-tissue damage as opined by Mr Dooley is perhaps the most likely diagnosis.

(c) Psychological and psychiatric factors

56        Pursuant to s.134AB(38)(h) such factors are only to be taken into account in an application based upon injury within the meaning of (c) of the definition – that is, permanent severe mental or permanent severe behavioural disturbance or disorder. Accordingly, such factors will not be taken into account in the present case. There are no reports from psychologists or psychiatrists in this matter, although Mr Dooley had suggested the presence of non-organic features. At times the plaintiff gave evidence in a somewhat peculiar fashion, and it may be that there are some non-organic factors at work, but, in the absence of more definitive evidence, I am not of the view that there is much to disregard by way of psychological or psychiatric factors. Whether chronic pain syndrome, if it exists, falls into this category is a matter for debate and probably depends upon the evidence in a particular case.

(d) Permanence

57        When it is difficult to diagnose an injury or define the cause for alleged symptoms, satisfaction that impairment and consequences will persist for the foreseeable future becomes more difficult. As previously stated, the most recent report from the Otway Medical Clinic paints a picture of some improvement with significantly less frequent medical attendances and reasonable control of back pain. In addition, Mr Brearley and Mr O’Brien (admittedly three years ago) have referred to the possibility of an MRI. However, on balance, I am of the view that the plaintiff’s present level of consequences will persist for the foreseeable future. What that level may be, which might assist in relation to diagnosis and prognosis is a different matter.

58        In coming to the conclusion that such level of impairment and consequences is permanent within the meaning of the Act, I would refer to the three most recent reports by medical experts. Dr Davison, as at 3 March 2009, expressed the view that the plaintiff has only mild impairment of back function on clinical examination, is working full-time, and has resumed a number of previous domestic and social activities. The plaintiff’s prognosis was considered by Dr Davison to be good.

59        Reporting on 18 May 2009, Mr Dooley stated as follows:

“I believe that Mr Morris will continue to note some intermittent lower back pain as a consequence of his work-related injury. I would not expect his condition to cause him any major functional disability in time and I would not expect his current condition to deteriorate in time.”

60        Mr Brearley, as at 1 July 2009, has indicated that the prognosis is as follows:

“He remains unfit to carry out manual labour. His condition is stabilised and he has reached maximum medical improvement. There is not likely to be any significant deterioration in the foreseeable future nor is there likely to be any need for interventional or operative treatment.”

61        In light of these views, I am of the opinion that the plaintiff’s condition is now reasonably stable, although there may be some further improvement. His level of impairment and consequences will persist in approximately the same fashion for the foreseeable future.

(e) Aggravation

62        The probability of some aggravation of underlying degenerative disc disease has been raised by Mr Dooley. However, the plaintiff had no symptoms of any significance prior to the incident in question. Insofar as the injury does constitute an aggravation of any pre-existing condition, it is only the consequences of that aggravation which shall be considered, but, in the absence of any evidence to the contrary, it seems to me that it is the same set of consequences which are under consideration regardless of whether or not the injury is in the nature of an aggravation.

(iv) The plaintiff’s employment, rehabilitation and retraining since the injury

63        As leave in relation to loss of earning capacity is not being pursued, details concerning earning rates and the like need not be set out. However, in this particular case, the plaintiff’s post-injury employment may have some bearing upon the satisfaction of the statutory test in relation to pain and suffering damages.

64        It is interesting that, when the plaintiff was seen by Mr Brearley on 14 July 2006, Mr Brearley expressed the view that the plaintiff was not fit for heavy labouring work or his pre-injury duties. However, he also expressed the view that the plaintiff would not be able to return to work as a kitchen hand because a good deal of very heavy lifting is required in that job along with much bending and stooping. By coincidence, the employment which the plaintiff obtained after finishing work with the defendant was as a preparation chef and kitchen hand in a pizza parlour at Port Campbell. The plaintiff worked hours varying between 15 to 36 per week, and described his employer as being sympathetic. It would appear from the report of Mr Brearley of 21 September 2007 that the plaintiff obtained this position a few weeks after being retrenched, and was still occupying it as at the date of that examination. Mr Brearley noted that the plaintiff was having considerable discomfort after the drive of 55 minutes each way to and from Port Campbell, but was managing the work itself without real difficulty.

65        The plaintiff ultimately left that employment because there was too much travelling involved. On 1 January 2008, he commenced full-time employment with George Taylor & Sons, a firm which operates a number of large stores in the Western District. These stores sell army disposal type goods, hardware, garden equipment and the like. The plaintiff continues to be employed by that firm on a full-time basis as a sales assistant. As the plaintiff apparently possesses the keys to the store in which he works, presumably he is regarded as a trusted employee. He admitted that he has done deliveries and has loaded or unloaded vans. He stated that he does not lift objects over 15 kilograms. Other duties which he performs include the picking up of items, stocking shelves, serving people and the like. Some brief video was shown of the plaintiff at his place of employment doing such things as moving a display of wheelbarrows.

66        The medical examiners have commented upon the plaintiff’s capacity for employment. I shall again deal only with the more recent, and therefore probably more helpful, reports. Mr Brearley has stated that the plaintiff was working full-time as a sales person, and does this without any real difficulty or restrictions other than avoiding heavy lifting. He agreed with a work evaluation which stated that the plaintiff was able to carry out light to medium manual handling where he can change his position or activity. Dr Davison noted that the plaintiff was employed on a full-time basis in a sales position, but would not endorse a return to pre-injury duties or the undertaking of moderate to heavy manual handling. Mr Dooley stated that, from the orthopaedic viewpoint, the plaintiff was fit to work in a light physical capacity.

67        Thus, the plaintiff has found employment which he states that he likes, even if he does not enjoy it as much as the abattoirs work. It also appears to be full- time employment with which he is coping without any great difficulty.

Ruling

68

I am of the view that the plaintiff has failed to discharge the burden of proof in this matter. I have arrived at this conclusion for the following reasons.

(i)	As I have previously stated at some length, the reliability of plaintiffs’ evidence, including that contained in their affidavits, is obviously important in all cases and particularly so where there is an absence of definitive pathology, no clear diagnosis, differing views as to the cause of complaints or indeed whether a cause can be identified, and no expert medical treatment. The present plaintiff may be viewed as a pleasant person but, for whatever reason, his evidence was not reliable. That absence of reliability then casts some doubts over such matters as the accuracy of description of symptoms, restrictions and the like.
(ii)	This lack of reliability and the giving of somewhat unusual answers is interwoven with the question of the actual consequences suffered by the plaintiff and how realistically they have been described. This may involve both the items of credit referred to previously and other consequences or restrictions stated. For example, in his affidavit of 29 June 2009, the plaintiff stated that he did not change his one year old baby, the inference being that he could not so do because of his injury. In cross-examination the plaintiff said he could not change the baby because he could not get down on the floor. He then said that he had a change table, and could change the baby on that table. In answer to a question of mine, he said that he did not change the baby at all. He then said that, if he changed her on the table, he would not be quick enough to grab her if she was going to roll off. His subsequent answers on this topic were confusing. I might say that the question of capacity to change the baby’s nappy was hammered to such an extent by Mr Scanlon that at times all present in the Court must have felt as if they had been, or had not been, changing babies’ nappies. However, there is some force to the point. The plaintiff is able to engage in drag racing at speeds of almost 100 miles per hour, change car tyres, go hunting (and probably for deer), perform an hour’s activity on an exercise bike and a treadmill, and work on a full-time basis in an occupation that involves at least some bending and lifting. To infer or state that, despite this, he is physically incapable of changing the baby’s nappy does not seem to me to be a realistic position to adopt. Given his activities, his description of his inability to pick the baby up was also not entirely convincing.
(iii)	When making the appropriate comparison, what also has to be looked at is what the plaintiff can do. I am satisfied that he can do the following:

(a)	He can participate in drag racing as a driver. This is a pursuit which he has only taken up since sustaining the injury. It may be that he drives at a race meeting only once a year, and that the races are only over a quarter of a mile and are completed very quickly. However, they involve acceleration from zero to almost 100 miles per hour in the fastest possible time. Furthermore, the race meeting can involve competing in several heats on the one day. The plaintiff said that the greatest number of heats in which he had competed in any one day was approximately 25. This is quite a lot of drag racing, and, apart from anything else, quite a lot of getting into and out of a car, something which was inferred or stated by the plaintiff could cause him difficulties if the vehicle was not one that was high off the ground. It was not suggested that the Torana is such a vehicle.
(b)	The plaintiff can do other things incidental to the maintenance of the Torana. He works on it for at least some hours per month. He can change tyres.
(c)	The plaintiff can go hunting on a reasonably regular basis. Indeed, Mr Mark Zampatti, physiotherapist at the Corio Bay Treatment Clinic, and who did an evaluation report of the plaintiff for his solicitors, reported on 16 July 2009 that, “He has over the past 2 years developed enough capacity with his walking to resume some deer hunting, which involves walking several kilometres”. Incidentally, the plaintiff told Mr Zampatti that he had not received any physiotherapy treatment for three years. Returning to the hunting, I would also point out that, even if he did not resume deer hunting until more recent times, the plaintiff has been able to hunt regularly since the recurrence of injury.
(d)	The plaintiff is able to engage in an hour of exercise on a regular, if not daily, basis. That involves a treadmill or running machine and an exercise bike. The plaintiff can spend half an hour on each, and can on occasions jog the equivalent of five kilometres.
(e)	The plaintiff is able to engage in full-time employment which he enjoys. His work involves a certain amount of bending and lifting as well as personal contact with customers, loading and unloading vans, and doing deliveries. Obviously that he has kept working is to the credit of the plaintiff, but he has not been deprived of the satisfaction of being engaged in employment and earning a living, and the benefits that flow from that. I do not regard the fact that the plaintiff enjoyed the work at the abattoirs more because of his mateship with fellow workers as being a consequence of any great significance, particularly when, as he has told Dr Davison, he loves his present position.
(f)	Apart from mixing with people at work, it is evident from the video that the plaintiff can mingle with others on social or sporting occasions. Of course, this is also demonstrated by his hunting activities, the drag racing, the participation at least at an organisation level with the local car rally and the like. The plaintiff has also gone camping. In short, his injury has by no means forced him to become a recluse.
(g)	The plaintiff’s evidence concerning having to kick a football with his son was somewhat confusing, but he agreed that he played “kick to kick” with his son at home and was physically capable of picking up the ball and kicking it to him. He may not do this at Auskick, although he said that he has picked up the ball and kicked it back to umpires on the ground and may have kicked it back to “the kids” on occasions.

69        Other factors to be considered in relation to the gravity of the consequences suffered include the fact that the plaintiff has no significant pathology established by radiology; he has not been referred to an orthopaedic surgeon for treatment and thus has had no such treatment; he has had no physiotherapy treatment for three years; and the most recent report from his general practitioners refers to reasonably well controlled pain and a steady reduction in the plaintiff’s reliance on medical attendance and strong analgesics. Obviously it is the consequences to the individual that are to be considered, but what could be described as the medicine in the present matter does not make a compelling case in support of the plaintiff’s application. In other words, this is far from a situation where the medicine is such that the plaintiff’s reliability becomes of diminished importance. Rather, the medicine itself alerts one to the possibility that the plaintiff may have difficulties in discharging the burden of proof and satisfying the requirement of the necessary comparison unless there is persuasive and reliable evidence as to the impairment and consequences.

70        Of course, when the question of the burden of proof is being considered, the lack of reliability of the plaintiff impacts adversely upon his application and upon consideration of his description of his general symptoms and restrictions in situations where the reliability of his word is important.

71        It may well be that the plaintiff is still suffering some of the symptoms and restrictions of which he complains, but, when the appropriate comparison is made, he has not satisfied me that the impairment and consequences from which he suffers have been established to the extent required to discharge the burden of proof. I am not satisfied that such impairment and consequences could be described as being more than significant or marked and as being at least very considerable when judged by comparison with other cases in the range of possible impairments or losses of a body function.

Conclusion

72        In summary, the plaintiff has failed to discharge the burden of proof in relation to his application for leave to bring proceedings for pain and suffering damages. It is dismissed. As his application for leave in relation to the pecuniary loss damages was not pursued, it is also dismissed. I shall hear the parties as to any ancillary orders that are required.