Moyes v ENSCO Australia Pty Ltd
[2020] WADC 99
•3 JULY 2020
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: MOYES -v- ENSCO AUSTRALIA PTY LTD [2020] WADC 99
CORAM: PETRUSA DCJ
HEARD: 16 OCTOBER - 3 NOVEMBER 2017, 9-27 APRIL, 5-8 JUNE, 3-7 DECEMBER 2018
DELIVERED : 3 JULY 2020
FILE NO/S: CIV 3813 of 2014
BETWEEN: WILLIAM MOYES
Plaintiff
AND
ENSCO AUSTRALIA PTY LTD
First Defendant
GRN AUSTRALASIA PTY LTD
Second Defendant
Catchwords:
Personal injury - Fall at work - Liability denied - Causation of injury - Credibility - Turns on own facts
Legislation:
Civil Liability Act 2002 (WA)
Workers' Compensation and Injury Management Act 1981 (WA); s 93K(4)
Result:
The plaintiff's action is dismissed against each defendant
Representation:
Counsel:
| Plaintiff | : | Mr D Campbell SC, Mr N Morrissey & Mr R Di Michiel |
| First Defendant | : | Mr D Clyne |
| Second Defendant | : | Mr D Clyne |
Solicitors:
| Plaintiff | : | Premier Compensation Lawyers |
| First Defendant | : | Kott Gunning |
| Second Defendant | : | Kott Gunning |
Case(s) referred to in decision(s):
Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 420
Department of Housing and Works v Smith [No 2] [2010] WASCA 25
Kerr v Minister for Health [2009] WASCA 32
Kuhl v Zurich Financial Services [2011] HCA 11; (2011) 243 CLR 361
Parlin Pty Ltd v Choiceone Pty Ltd [2012] WASCA 19
Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; (2007) 234 CLR 330
Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422
Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40
Index to Judgment
1. Introduction
2. Summary of Mr Moyes' case
3. Summary of ENSCO's case
4. The issues
(a) The issues
(b) Mr Moyes' credibility
5. Was there a fall?
(a) The evidence of Mr Moyes
(b) Other evidence concerning the fall
(c) Findings as to whether there was a fall
6. Duty of care
(a) Principles
(b) Was the fall the result of a breach of duty?
(i) The pleadings
(ii) The expert evidence
(iii) Submissions on the facts relating to duty of care
(c) Findings on breach of duty
7. The nature of the fall
8. What physical injury, if any, did Mr Moyes suffer as a result of the fall?
(a) Spinal injuries
(b) Dr Pratsis' opinion - fracture and prolapsed disc
(c) Dr Stock's opinion - no fracture; pre-existing prolapsed disc
(d) Dr McCormick's opinion - no fracture; pre-existing prolapsed disc
(e) Findings on physical injury
9. Bruising and swelling of the thoracic spine
(a) The evidence of bruising and swelling
(b) Findings on bruising and swelling
10. Mr Moyes' medical treatment
11. Neuropathic or nociplastic pain
(a) The source of any pain
(b) The use of oxycodone medications for pain
12. Factors relevant to nociplastic pain
(a) The early treatment of pain
(b) Psychosocial factors
(c) Mr Moyes' previous pain history
(d) The mechanism of Mr Moyes' injury
(e) Mr Moyes' reports of the character of his pain
(f) Clinical observations and formal examinations
(g) What, if any, causal link exists between the fall and the pain?
13. Dr Low - occupational physician
14. Dr Fairhurst - general medical practitioner
15. Ms Danielle Brennan - occupational therapist
16. Dr Dewing - general medical practitioner
17. Credibility of Mr Moyes
(a) Observations at trial
(b) Language
(c) Long term use of pain medication
(d) Cannabis cultivation & time in custody - image management, manipulation and untruths
(e) Use of Endone after release from custody
(f) Lies, inaccuracies, selective memory and inconsistencies
(g) Post fall claim conduct
(h) Findings on post fall claim conduct
(i) Analysis of period from May 2013 to April 2014
(j) Analysis of period from May 2015 to August 2015
(k) Analysis of period from 1 December 2016 to 31 March 2017
(l) Accumulation of property
(m) Mr Moyes' activities prior to his fall
(n) Mr Moyes' activities after his fall
(o) Evidence of friends and carers
(p) Findings on Mr Moyes' credibility
18. The psychiatric evidence
19. Dr Tannenbaum
(a) The provision of medical evidence and other information to Dr Tannenbaum
(b) Factual discrepancies in Mr Moyes' account to Dr Tannenbaum
(c) The effect of misinformation on Dr Tannenbaum's opinion
(d) Findings on Dr Tannenbaum's evidence
20. Dr Terace
(a) The provision of medical evidence and other information to Dr Terace
(b) Findings on Dr Terace's evidence
21. Conclusion
PETRUSA DCJ:
Introduction
The plaintiff, Mr William Moyes, alleges that on 19 January 2012, whilst working on an offshore drilling rig, and stepping down from a raised platform, he slipped on drilling mud causing him to fall and sustain an injury to his back.
The first defendant, ENSCO Australia Pty Ltd, operated that drilling rig.
The second defendant, GRN Australasia Pty Ltd, is a labour hire business which employed Mr Moyes and provided his services to ENSCO.
All work on the drilling rig was conducted under the direction and control of ENSCO and all relevant safety protocols were supervised by it.
Mr Moyes sought damages from ENSCO and GRN for the injuries and loss he claimed to have suffered as a consequence of his fall. However, at the end of the trial, counsel for Mr Moyes conceded that the claim against GRN could not be made out by reason that the medical assessment of Mr Moyes in terms of his whole person impairment did not reach the statutory threshold permitting such a claim: Workers' Compensation and Injury Management Act 1981 (WA); s 93K(4).[1] Therefore, these reasons will only deal with the claim against ENSCO.
[1] ts 2,885, ts 3,142 - ts 3,143.
Summary of Mr Moyes' case
Before turning to a detailed consideration of the issues, it is appropriate to outline the final positions of Mr Moyes and ENSCO and the issues arising. This is because their pleadings did not reflect their final positions.
Mr Moyes' claims are made in common law negligence and for breach of statutory duty imposed by the Civil Liability Act 2002 (WA) (CLA).
In summary, Mr Moyes' case was that he was injured in the course of his employment as a floorman on ENSCO's oil rig and primarily, he suffered two injuries to his spine, being a fracture of the T8 vertebra and a prolapsed disc at T7/T8. Further, as a result of the fall, Mr Moyes submitted he suffered damage to sensorial nerves in his mid‑back, causing a pain syndrome. His case was that because of the injury to his spine and the pain syndrome, he developed a psychiatric condition. His case insofar as causation was concerned, is circumstantial. Mr Moyes submitted that it is more probable than not that his residual impairments are a sequelae of his physical injuries. It was his case that, as a consequence, he has suffered a total loss of earning capacity.
Mr Moyes relied upon a number of medical experts. Their opinions necessarily depended upon Mr Moyes' explanations to each of them and the assumptions of fact which they made and upon which they formed their respective opinions.
Summary of ENSCO's case
ENSCO did not admit liability or quantum.
ENSCO's case was, in summary, that Mr Moyes is an unreliable historian. This, ENSCO submitted, is of significance for a number of reasons. First, the fall did not occur. Secondly, any expert opinion, which to any significant extent relied upon an acceptance of the accuracy and veracity of the history provided by Mr Moyes, should not be accepted. ENSCO also submitted that it is open to find that Mr Moyes is a malingerer, although its case did not rely on the court being so satisfied, given the extent of the submitted unreliability of Mr Moyes' evidence.
The issues
(a) The issues
The relevant issues to be decided are:
1.was there a fall and if so, the nature of that fall;
2.was the fall the result of a breach of duty;
3.(a) what, if any, physical injury did Mr Moyes suffer as a result of the fall; and
(b)what, if any, psychiatric injury developed following any physical injury;
4.did any injury give rise to a disability;
5.what was the nature and extent of any disability; and
6whether any damages should be awarded?
(b) Mr Moyes' credibility
Central to the determination of the issues is Mr Moyes' credibility. He was the only witness to the fall and all of the medical opinions regarding the development of any post-fall condition rely on his self‑reporting of symptoms and capacities. In order then to accept the medical evidence, I must necessarily accept that the information provided by Mr Moyes to his doctors and his other health care professionals was truthful, accurate and reliable.
Was there a fall?
(a) The evidence of Mr Moyes
The alleged fall was not observed by anyone. Only Mr Moyes could give evidence of it.
Although Mr Moyes reported to an oil rig medic shortly after the fall, he has never accurately recalled the date of his fall. When he first complained of the fall to his superior at GRN, Mr Mark Paramor, Mr Moyes simply described it as having occurred in the 'last swing'.[2] In subsequent correspondence he said 'my guess it was Sunday the 22nd'[3] and this date appears on his workers' compensation claim form.[4] In his re-amended statement of claim dated 18 April 2018, he pleaded that the fall occurred 'on or about 19 January 2012'.
[2] Exhibit 3.8, page 133.
[3] Exhibit 20, page 65.
[4] Exhibit 3.9, page 179.
Regardless of the date, Mr Moyes' evidence was that he was about half way through his 12 hour shift when he was asked to assist Mr Roger Donkersley, the derrickman.
Mr Moyes had been working as a floorman on the drill floor with the drill crew when he was instructed to go to the sack or mud-mixing room to assist Mr Donkersley. He was instructed to assist Mr Donkersley put chemicals into drilling mud. The chemical in this instance is commonly known as drispac.
Mr Moyes was familiar with the process. Since 2007, he had worked on drilling rigs in various capacities, including as a derrickman. In fact, in November 2011, he commenced as a derrickman or pumpman on the very same rig on which he suffered his fall.
Drilling mud is generally composed of water with various compounds added to it. It is a fluid pumped down the centre of a drill string to cool the drilling tool or bit and to carry the cuttings back to the surface.
On this occasion, drispac needed to be added to the mud by what is known as 'the slam dunk' method, which involves adding drispac to mud as it flowed from one tank to another through a stainless steel hopper. The drispac needed to be added within a nominated time frame, which was invariably short, requiring the drispac to be emptied from the bags and added to the drilling mud very quickly. Hence, the name 'slam dunk'.
Bags of drispac had been put onto a pallet and positioned near the hopper. The primary working area near the hopper was a raised and grated platform, which was made of 6 mm steel plating welded together. This platform sat 425 mm above the deck floor.
Mr Moyes assisted by helping to cut the bags open prior to the mixing. Once they had completely emptied the drispac into the hopper, Mr Moyes was responsible for the disposal of the bags.
Mr Moyes' evidence was that in the course of pouring the bags of drispac into the hopper, drispac could, and would, spill onto the grated platform, or 'catwalk' as he called it, and through to the deck below. He did not specifically say this happened on the occasion he fell, but rather, that it was an inevitable and usual consequence of the slam dunk method.
Once all the bags had been emptied, Mr Donkersley left the area leaving Mr Moyes to clean up. He washed drispac through the funnel, turned off the hose and then, he stepped down to the deck floor from the grated platform to access a valve which closed the funnel to the hopper. He said that as he stepped off the grated platform, his right foot slipped from under him, causing him to fall. His evidence was that he fell heavily on a slight angle clipping his elbows and head on the grated platform. In the process, he also struck the middle of his back, behind his chest, on the metal edge of the raised grated platform.
Mr Moyes claimed, in evidence that, at the time he fell, he heard 'a loud snapping sound'. He alternatively described this as 'a crack'.[5]
[5] ts 284.
In any event, Mr Moyes said that he was left half suspended on the grated platform, with his legs in what he said was 'the muck'. He did not see any muck, but rather, he said he felt that he was wet. After a short time, he got up and immediately made his way to the pump room where he found Mr Donkersley. He needed to signal to him because of the loud noise. They then moved to a quieter area, where he told Mr Donkersley of his fall. Mr Donkersley advised him to see the medic, which he did.
(b) Other evidence concerning the fall
There were no eye witnesses to the fall. However, there is independent evidence which supports his evidence of the fact of a fall, namely:
1.the consequence of the slam dunk method;
2.the entry in the daily log medical records; and
3.the evidence of Mr Donkersley and another co-worker, Mr Gareth Thomas.
First, I have set out the consequence of the slam dunk method above at [23], noting the spillage of the drispac onto the grate and deck below.
Further, both Mr Donkersley[6] and Mr Thomas,[7] gave evidence that the very nature of the slam dunk method is such that dry chemicals are spilt. Both men spoke about the need to clean the area following a slam dunk. Mr Thomas specifically said that valves would generally need to be closed, particularly if the area were to be left unattended.[8] Mr Thomas recalled that the valve in the area described by Mr Moyes required a person to step off the grate to access it.[9]
[6] ts 1,266.
[7] ts 1,892.
[8] ts 1,894.
[9] ts 1,895 - ts 1,896.
Further still, it was not in dispute that when drispac was wet, it became slimy and slippery.[10] Apart from Mr Moyes' evidence that he felt wet after his fall, there is no other direct evidence that the deck was wet on this occasion. Mr Moyes did say water was used to clean the area and that he had turned off the hose before stepping down.[11] However, Mr Thomas had seen water on the deck floor in the sack room on other occasions[12] and Mr Donkersley accepted that the deck floor, not the grated area, could be slippery.[13] He did not say that Mr Moyes was wet when he reported the fall to him.
[10] ts 1,268 (Mr Donkersley); ts 1,892 (Mr Thomas).
[11] ts 283.
[12] ts 1,892.
[13] ts 1,267.
Secondly, whilst oral evidence was not called from the oil rig medic in relation to Mr Moyes' consultation with him, there is a contemporaneous note of such a consultation in the daily log medical record. That record indicates a consultation took place at 0800 hours on 19 January 2012. The entry reads as follows:[14]
[14] Exhibit 2.8, page 626A.
Fall at work. Slipped in polymer @ #1 mixer. Mild abrasion to mid back and minor cuts to (L) elbow. FAC. Nil malalignment of spinal process, nil parathesia in limbs. (L) elbow cleaned and dressed. IP declined analgesics. RTW - light duties. r/v tomorrow unless worsening today. Note PMHX of lumbar spine pathology.
Declined analgesics. Dressed (L) elbow. Injury report filed.
Consistent with this note calling for review 'tomorrow', the daily log medical record also has an entry for 20 January 2012. It records that at 12:00 hours, Mr Moyes again presented to the medic. The entry for this day reads as follows:[15]
[15] Exhibit 2.8, page 626A.
r/v of above injury. IP reports to feeling 'much better'. 'Just a little bit stiff over the spot on my back'. 'elbow is OK'.
Nil [treatment]. Analgesics offered.
These entries are consistent with there being a fall on 19 January 2012, for which, Mr Moyes sought medical treatment. Further, the areas of injury documented are consistent with those described by Mr Moyes in evidence. The log also documents that the fall occurred in the location described by Mr Moyes and Mr Thomas gave evidence of the requirement to step off the grate to the deck floor below.
Thirdly, Mr Donkersley gave evidence of an occasion when Mr Moyes came to him complaining he had hurt himself. He said he advised him to attend upon the medic. Mr Donkersley was in the pump room at the time of this complaint. Some days later, they were both evacuated from the rig because of a cyclone. At trial, Mr Donkersley did not recall doing anything with Mr Moyes prior to this complaint, nor of any information being conveyed to him by Mr Moyes at the time of the complaint about how, or to what extent, he had been injured.[16] However, the fact that he recalled a complaint of an injury, whilst in the pump room, is consistent with Mr Moyes' account.
[16] ts 1,268.
(c) Findings as to whether there was a fall
From what is known about the location of the documented fall, the activities which occur in that location and the chemical used, it is not glaringly improbable that a fall could occur. Further, as a matter of commonsense and experience, it is improbable that Mr Moyes would have seen Mr Donkersley and a medic complaining of a fall unless such had occurred.
Given this support for Mr Moyes and from other evidence concerning the state of the area after the slam dunk procedure, the daily log medical records, Mr Thomas and Mr Donkersley, I am satisfied on the balance of probabilities that Mr Moyes did suffer a fall during the course of his work on 19 January 2012.
Duty of care
(a) Principles
It was accepted by ENSCO that it owed a duty of care to Mr Moyes.
ENSCO, as the 'host employer', owed Mr Moyes a duty of care akin to that of his employer to provide a safe system of work,[17] being a duty existing at common law.[18] The CLA also applies. Whilst working on the rig, ENSCO facilitated Mr Moyes' method of work. It controlled and maintained his place of work, including the equipment and plant on the rig.
[17] Defendants' closing submissions, page 4, par 10; Parlin Pty Ltd v Choiceone Pty Ltd [2012] WASCA 19.
[18] Department of Housing and Works v Smith [No 2] [2010] WASCA 25 [77] (Buss JA).
The parties agreed that there is very little practical difference between the approaches at common law and under the CLA, particularly in so far as they apply to this case.[19]
[19] Plaintiff's written closing submissions, part one, page 8, par 13.7.
Section 5B(1) and s 5B(2) CLA provide:
(1)A person is not liable for harm caused by that person's fault in failing to take precautions against a risk of harm unless -
(a)the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known); and
(b)the risk was not insignificant; and
(c)in the circumstances, a reasonable person in the person's position would have taken those precautions.
(2)In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things) -
(a)the probability that the harm would occur if care were not taken;
(b)the likely seriousness of the harm;
(c)the burden of taking precautions to avoid the risk of harm;
(d)the social utility of the activity that creates the risk of harm.
Reasonable foreseeability is an objective test.[20] Both the common law and s 5B require the court to determine what a reasonable employer/host employer in the position of ENSCO should have done in response to a foreseeable risk of harm.[21] Whether that reasonable person would have taken precautions against a risk is determined prospectively, rather than retrospectively, by asking whether ENSCO's actions could have prevented injury to Mr Moyes.[22]
[20] Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; (2007) 234 CLR 330 [70] (Gleeson CJ).
[21] Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 420 [31].
[22] Roads and Traffic Authority of NSW v Dederer [65] (Gummow J).
The relevant provisions of the CLA essentially encapsulate the position at common law. The minor difference relates to the common law approach to foreseeability being:[23]
a risk which is not far-fetched and fanciful is real and therefore foreseeable
which is a lower standard than that applied under the CLA. This difference in approach, as the parties agree, has no practical effect in this case.
[23] Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40, 47 - 48 (Mason J).
With these principles in mind, I return to the question of whether the fall was the result of a breach of the duty of care.
(b) Was the fall the result of a breach of duty?
(i) The pleadings
Mr Moyes pleaded that ENSCO breached its duty of care in that, amongst other alleged breaches, it:
1.failed to provide a safe surface/flooring for Mr Moyes to work on when working on the rig, particularly in circumstances in which ENSCO could have placed grating or a non-skid surface on the section of the lower deck floor onto which Mr Moyes was required to step, thereby minimising the risk of slippage;
2.failed to provide Mr Moyes and other persons working on the rig with a safe place of work, particularly when requiring access to the section of the lower deck floor near to the valve which he was required to close;
3.failed to provide Mr Moyes and other persons working on the rig with a safe system of work, particularly in relation to their accessing and utilising the valve;
4.required Mr Moyes, in the course of his work duties, to step down 425 mm from an excessively elevated raised work platform onto the slippery deck floor below without providing a further step or handrail;
5.failed to provide Mr Moyes and other persons working on the rig with safe plant and equipment; and
6.failed to provide Mr Moyes with a safe means of access to places where he was required to perform his duties.
Mr Moyes' case was that the relevant risk of harm to which the breaches relate was the risk of him sustaining personal injury from falling on a slippery floor whilst working in the mud-mixing room on the oil rig.
(ii) The expert evidence
In regard to both the existence of the risk and what a reasonable response to that risk would be, Mr Moyes relied on the evidence of Mr Timothy Bailey, a mechanical engineer, with expertise in commissioning and supervising offshore oil rigs, as well as designing components for those rigs. He prepared two expert reports.
Mr Bailey addressed the protective measures which could have been taken with respect to the oil rig relating to:
(a)the slippery flooring of the mud-mixing room;
(b)the positioning of the valve operating lever; and
(c)the height of the step between the raised grated platform and the level of the valve.
Mr Bailey was not cross-examined with respect to any of the expert opinions he gave and so this evidence remained uncontested.[24]
[24] ts 1,915 - ts 1,916; ts 2,795.
It is common ground that drispac would, in the ordinary course of the mud mixing process, spill through the grating and onto the painted metal deck floor below. This was more likely to occur when drispac was added using the slam dunk method. Both Mr Donkersley and Mr Thomas spoke of this.[25]
[25] ts 737; ts 1,267; ts 1,892 - ts 1,893; ts 2,736.
It was also not in dispute that, when wet, drispac is extremely slippery. There was also evidence that the deck floor could get water on it in a number of ways, including spillage from the hoppers. Although there was no evidence about the state of the deck floor before the fall, no issue was taken with the fact that there could well have been water or fluid on it.
Mr Bailey added that, as was the case here, the[26]
smooth-painted parts of the mud mixing area floor were extremely slippery when wet with water - and even more slippery if the water had a lubricant such as 'Drispac' mixed in with it.
[26] Exhibit 2.7, page 505D, par 4, pages 481 - 626C; ts 1,914 - ts 1,915.
As Mr Thomas explained, when mixing drispac in the hopper, the valve needed to be opened and closed at various intervals. This required the worker to step off the raised grated platform and down 425 mm onto the deck[27] to get to the level of the valve, which was awkwardly positioned.[28] This, he said, was different to other similar rigs where valves in mud mixing areas like this were often easily accessible, usually on the same level and able to be closed by the operator merely bending down.[29]
[27] ts 1,895.
[28] ts 1,906 - ts 1,907; ts 1,895 - ts 1,896.
[29] ts 1,906; ts 1,896.
Mr Bailey expressed the opinion that a person stepping down from a raised grated platform onto a smoothly painted mix room deck floor was at risk of slipping, particularly if it was wet or had foreign material spilt on it.[30] He stated that given the method used to load the hopper, it was inevitable that spillage would occur. These are matters of commonsense. ENSCO concedes them and I accept them.
[30] Exhibit 2.7, page 505E, par 9.
Mr Bailey went on to opine that there was nothing to prevent the provision of a non-skid surface to the top of the smooth surface near to the hopper valve lever that was to be accessed.[31] This opinion was not challenged.
[31] Exhibit 2.7, page 505E, par 10.
In addition, Mr Bailey proposed that the valve located at the base of the No.1 charging station could have been mounted differently to make the valve operating lever accessible from the adjacent walkway.[32] This would avoid the need to take the step which Mr Moyes said resulted in his fall.
[32] Exhibit 2.7, page 505E, par 8.
Finally, in Mr Bailey's opinion, the height of the grated platform, being 425 mm above the deck floor, represented a stepping hazard, was unsafe and likely contributed significantly to Mr Moyes' foot slipping when he stepped down from the raised platform to adjust the valve handle.[33] He suggested the provision of a small handrail and/or grab handles so that a person stepping down from the raised platform could maintain three points of contact whilst stepping down.[34] Similarly, one standard step could have been provided between the raised grated platform and the deck floor below to ensure compliance with Australian Standards and to decrease the risk of slipping.[35]
(iii) Submissions on the facts relating to duty of care
[33] Exhibit 2.7, page 492, par 8.
[34] Exhibit 2.7, page 505E, par 10.
[35] Exhibit 2.7, page 492, par 8.
Mr Moyes submitted that the risk of injury by slipping on the mud-mixing room floor was a significant and very real risk. It was 'not insignificant' and not 'far-fetched or fanciful'.[36] Further, any one of the three matters proposed by Mr Bailey as set out above at [53] - [55] would have been a reasonable response to the risk.
[36] Plaintiff's closing written submissions, page 30, par 49.3.
ENSCO accepted that a slippery floor may pose a risk of slipping, but asserted that, at the time of his fall, Mr Moyes was well aware the floor became slippery as a result of conditions in the mud mixing room.[37] Further, that the risk of slipping was clear to both host employer and employee, and provided it was approached with commonsense, serious injury was not likely to occur.[38]
[37] Defendants' closing written submissions, page 7, par 24; ts 736 - ts 737.
[38] Defendants' closing written submissions, page 7, par 23.
ENSCO also submitted that there was no evidence of a suitable alternative system which would or could have reasonably prevented that floor from being slippery in the ordinary and proper conduct of the drilling operation. ENSCO submitted that those persons in the room were to take appropriate care for their own safety in the clear knowledge that the deck floor was slippery.[39]
[39] Defendants' closing written submissions, page 6, par 20; ts 2,737.
Mr Moyes accepted he knew that the deck floor could become slippery, but said he would take extra care when stepping down and at times, he put down a small piece of grating. In any event, it was never suggested to Mr Moyes in cross-examination that he was acting in any way other than with commonsense and care.
In addition, ENSCO neither raised any plea of contributory negligence, nor a plea of obvious risk at any time.[40] Contributory negligence does not arise for consideration.
[40] ts 2,796.
Consistent with the authorities, I accept that matters relating to an obvious risk, as raised by ENSCO, cannot be used as a concept to determine questions of breach of duty.[41] Inquiries of obvious risk are only relevant when considering contributory negligence, rather than breach of duty.[42]
[41] Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422 [162].
[42] Vairy v Wyong Shire Council [162].
ENSCO also submitted that there were occasions when there were spillages, other than drispac, when it was necessary for workers to go down from the platform to the lower deck floor for the purpose of cleaning up.[43] ENSCO's position was that, as Mr Moyes himself stated, the reason he moved to the lower level was not simply to open the valve, but to clean the lower area, so movement of the valve may not specifically eliminate the risk.[44] I accept that although there are numerous reasons why a person may access the lower level, including for cleaning or to tend to the valve, the movement of the valve to the deck floor level beside the hopper would be a reasonable precaution a reasonable employer would take to ensure a safe place of work and to minimise the potential risks associated with slipping. Additionally, the provision of a non-slip surface beside the valve itself would reduce the risk of slipping whilst cleaning. The provision of a hand rail and/or grab handle or a further standard step would also assist in stepping from the raised grated area to the deck floor below.
(c) Findings on breach of duty
[43] Defendants' closing written submissions, page 6, pars 17, 18.
[44] Defendants' closing written submissions, page 6, par 19; ts 283.
I find that the risk of injury from a worker slipping when stepping down 425 mm from the raised grated platform to the slippery deck floor below was reasonably foreseeable, and not insignificant. ENSCO knew, or ought reasonably to have known, of such a risk.
The harm which could be caused from a fall in these circumstances may be serious given the metallic nature of the plant, including the hard nature of the flooring, as well as the drop of 425 mm to the deck floor.
A reasonable person, in the position of ENSCO, would have taken precautions, such as those aforementioned, to address this risk and ENSCO ought to have taken these. The burden of taking precautions to avoid or ameliorate that risk would not have been onerous and could have been done without much difficulty or expense. No evidence has been led to persuade me otherwise. Accordingly, I am satisfied the particulars of negligence referred to above at [44] have been made out.
The nature of the fall
The only findings I am able to make about the nature of the fall are that Mr Moyes fell when stepping from the raised grated platform onto the deck floor below and that he fell such that, at some point during, or at the end of, his fall, his mid-back and left elbow each contacted one of the metal surfaces in the area. I am not otherwise satisfied that he landed forcefully on his back, as he now alleges. My reasons for this finding follow.
The only direct evidence about the nature of the fall came from Mr Moyes' evidence-in-chief. He was asked about his fall and described it in this way:[45]
[45] ts 283 - ts 284.
And when you stepped down, what, if anything, happened? --- It was like I'd been shot out of a gun.
Well, just describe what happened physically to you as you went down? --- I stepped off with my right foot, obviously, having, you know, quite a bit of my body weight on my left foot. When I put my right foot - and unfortunately, it wasn't just the step height. It was quite a large distance. I work with carpentry so ---
…
Mr Moyes, just describe it please. I don't want a commentary? --- Sorry. I stepped down with my right foot. My right foot shot forward and I - as if to flick me and I landed very heavily on a slight angle on my back and from memory clipped my elbows and my head hit the - the catwalk too.
And when you say you had an impact with your back, which part of your back struck the surface? --- Behind my chest area.
So in about the mid thoracic area? --- Well, I'm not a doctor but yeah, it was behind my heart was what I'd call it.
And did you notice anything when your back struck that part of the stairway? --- Can you ask that again, please?
Yes. Did you notice anything about your back when it hit the ground beneath you? --- It was all too quick but I heard a loud snapping sound, if that helps.
Yes. Anything else? --- Like I said, there was just a crack and I was kind of in the half - half suspended on the catwalk with my upper body and with my legs in the muck, if you like.
Well, did you see muck? --- Yeah. There was - well, I didn't see it when I was laying there but - well, I was wet. My legs were wet. Yeah.
…
And did you collect yourself and get up or did you remain on the ground or what happened? --- I was kind of not quite laying but I was awkward but I just went, 'Wow' and 'Can I move my toes', which I was fearful of.
…
What - you - you were down. Did you get up or did you stay down? --- I stayed down for a little while.
Alright. And did you then get up or did someone help you up? --- I got up rather slowly.
Alright. And when you got up did you go somewhere? --- Yeah, rather slowly.'
(emphasis added)
After describing the fall, Mr Moyes explained how he went to see Mr Donkersley for advice. Mr Moyes' evidence was that he described the fall to Mr Donkersley as[46]
a very serious fall
and that he may in fact have said[47]
[b]y gee, it was a serious fall, it was a really serious fall, like I think I might have hurt myself.
[46] ts 285.
[47] ts 286.
It was after he had spoken with Mr Donkersley that Mr Moyes saw the oil rig medic. Mr Moyes' evidence was that he then returned to work on light duties and remained on light duties until 26 January 2012, when he was evacuated off the oil rig due to an oncoming cyclone.[48]
[48] ts 273; ts 288.
Mr Moyes was asked about his condition during that period and these were his responses, namely:[49]
How were you feeling within yourself over these days? Do you remember?--- I'm not the greatest with words but tentative, would that be a word, or fragile, winded if that helps.
And did you notice any symptoms in your body other then this sensation or these sensations you just described?--- Yes. Yes. Yes.
What symptoms, if any, did you notice?--- Well, there was a lot of swelling in my back. There was quite a - I asked somebody to look at it. So that helped me understand what it looked like.
It can be noted here that only swelling, and not bruising, was reported to Mr Moyes.
[49] ts 292.
The clear import of these above descriptions at [67], [68] and [70], of both the event and its aftermath, is that Mr Moyes claimed, in effect, he became airborne when his right foot went forward causing an uncontrolled fall from a standing positon. He said he then landed, and was suspended, on his mid-back on the metal edge of the raised platform and that the impact was forceful given the audible crack. He got up rather slowly from this suspended position. He referred to swelling. This caused him considerable pain, concern and restriction.
There are a number of aspects of Mr Moyes' account which are inconsistent with other evidence, including his own testimony.
First, I do not accept Mr Moyes' evidence that at the time he fell he heard a crack or loud snapping sound.
The evidence from Mr Thomas, a co-worker on this rig to whom I have previously referred above at [27], was that the mud mixing room on the oil rig was a hot and noisy place. This particular room was near bulk heads and the pump room with pumps pumping the mud on the other side. Consequently, unless the drilling was stopped, the mud mixing room was noisy. Mr Thomas confirmed that the pumps operate when a slam dunk is being performed.[50] There is nothing to suggest that the pumps were stopped at any relevant time. Further, given that the very purpose of adding drispac was to ensure the mud was of a particular viscosity, then clearly mud was being pumped and so, it follows that the pumps were operating at the time. The mud mixing room must therefore have been hot and noisy at the time Mr Moyes fell, as Mr Thomas stated. Further, Mr Moyes was not able to report his fall to Mr Donkersley in the pump room because of the loud noise. They needed to go to a quieter area to enable this to occur.
[50] ts 1,911.
As a matter of commonsense and logic, Mr Moyes could not have heard a loud snapping sound or crack as he described. I do not accept that evidence. This finding has significance because it not only adversely impacts on Mr Moyes' credibility in general, but it also speaks to the force of any impact on his back and any injury to his spine which may have resulted.
Mr Moyes' credibility is further impacted by the fact that the description given by him of his fall does not accord with what he later indicated, during his evidence, on various photographs.
From a bundle of photographs, Mr Moyes was asked to select those which best depicted the area where he slipped and fell. Mr Moyes took his time, and after a period of about five minutes, he selected five photographs which were subsequently tendered into evidence and became Exhibit 5. It is not clear who took these photographs, save to say that they appear to be consistent with those that appear in Appendix 2 of Mr Bailey's report.
On photograph number 1, Mr Moyes marked with an 'X' the area from which he stepped, when he fell.[51] On that same photograph, he marked with the letter 'f' the mixing funnel or hopper on which he had been working prior to the fall.[52]
[51] ts 334.
[52] ts 342.
On photograph number 1A, Mr Moyes again marked with the letter 'f' the mixing funnel or hopper on which he had been working prior to the fall.[53] He also marked with the letter 'B' the area where his back struck the metal edge of the raised grated platform when he came to rest.[54]
[53] ts 342.
[54] ts 338.
In photograph number 2, he marked with the letter 'L' the area where the left-hand side of his upper body would have come to rest after the fall.[55]
[55] ts 339.
In photograph number 3, he marked with the letters 'RL' the area where his right leg was positioned when he came to rest. He also marked, with the letters 'RU', the area where his midsection or upper body would have ended up after the fall.[56]
[56] ts 340.
In photograph number 4, Mr Moyes drew a body figure depicting his final resting position after the fall. He labelled his left leg with the letters 'LL', his right leg, which was partly behind a steel beam, with the letters 'RL' and he wrote the word 'torso' to denote his upper body.[57]
[57] ts 340 - ts 341.
When these photographs are looked at together, and with the photographs which appear in Appendix 2 of Mr Bailey's report, it is clear that Mr Moyes' feet have come to rest near to hopper number 2.
The photographs in Appendix 2 to Mr Bailey's report are labelled and clearly show that:
1.the valve handle to hopper number 1 is under that hopper itself;
2.adjacent to the valve handle, there is an area to stand on the deck when manipulating the valve handle;
3.the area on the deck adjacent to the valve handle is accessible from the raised grated platform;
4.hopper number 2 is some distance to the right of hopper number 1 and has its own valve handle;
5.the caustic mixing container is located between hopper number 1 and hopper number 2; and
6.the caustic mixing container does not prevent movement between hopper number 1 and hopper number 2 on the deck, but it does restrict movement.
If, as Mr Moyes described in evidence, his right foot 'shot forward' as he stepped down to access the valve handle to hopper number 1, then given the configuration of the area, his feet could not have, rationally, ended up near hopper number 2.
Further, the areas marked in the photographs numbered 1 and 2 clearly show areas adjacent to hopper number 1, whilst the areas marked in photographs numbered 3 and 4 show areas adjacent to hopper number 2. Mr Moyes' markings on the photographs are irreconcilable.
One would reasonably expect Mr Moyes to know on which side of his body hopper number 1 and its associated valve handle were located both prior to, and after, his fall. Despite this, in photographs 1, 1A and 2, the hopper and its associated handle is clearly on the left of Mr Moyes' position, whilst in photographs 3 and 4, the hopper and its associated handle is clearly shown on his right.
This irreconcilable difference raises another issue not just about Mr Moyes' reliability but, also his honesty.
Further, and at face value inconsistent with a fall involving considerable force, are the notations in the medical log which describe Mr Moyes' injuries as a 'mild abrasion to mid back' and 'minor cuts to (L) elbow' (emphasis added).
Also, at face value inconsistent with a forceful fall onto his back, described by Mr Moyes in evidence as being 'very serious', is Mr Moyes' conduct:
1.in terms of his reports to Mr Donkersley and to the medic on 19 and 20 January 2012, not revealing anything of the seriousness of the fall now claimed by Mr Moyes;
2.working, even on light duties, until 26 January 2012, when he was evacuated from the oil rig and thereafter, returned to his home in Bridgetown;
3.in not reporting the fall to his superior at GRN until 13 February 2012, as set out below at [100];
4.in not seeking medical attention after his return home until 28 February 2012; and
5.in actively seeking work as a roustabout, floorman or derrickman up to and including 2 March 2012.
A further matter going to Mr Moyes' credibility is his evidence set out above at [70] when, for the first time, he claimed he suffered 'a lot of swelling in [his] back'. However, the medic's record of the injury above at [31] and [32] was only of a 'mild abrasion to mid-back', without any reference to swelling, either on the day of the fall, or on the following day. I reject his evidence of swelling. This is especially so given his evidence, first, that he claimed he showed the swelling to 'somebody' and, secondly by inference, that this 'somebody' must then have described that swelling to him in order to enable Mr Moyes to 'understand what it looked like': see above at [70].
Despite extensive contact with health professionals over five years Mr Moyes did not, at any time, relate this, or any version of swelling, to any of those health professionals who have assisted him with his claimed injury. Accordingly, I do not accept this evidence of swelling, together with the claimed observation of it and the inferred description of it to enable an understanding of it.
Finally, it is difficult to accept that Mr Moyes was suspended after his fall with his upper body on the metal edge of the raised grated platform, or catwalk, and his 'legs in the muck': above at [67]. A forceful fall is unlikely to have left him lying suspended from his back, being the point of impact and final resting point, on the grated platform. Rather, a forceful fall would more likely than not have resulted in him falling to that point from which he could not fall, slide or slip any further on wet drispac and at which, he became stationary. Suspension would not be likely with his legs lying loosely on the slippery deck floor and his body supported only by a resting point on his mid-back and no other contact point.
Although satisfied on the balance of probabilities that Mr Moyes fell in a way which impacted his back, I am not satisfied that it was a forceful fall.
What physical injury, if any, did Mr Moyes suffer as a result of the fall?
In his particulars of damage, Mr Moyes asserted that as a result of ENSCO's negligence, he suffered:
1.injuries to his:
(a)thoracic spine;
(b)right and left elbows;
(c)chest; and
(d)sensorial nerve disturbance in his thoracic spine;
and
2.severe psychological and psychiatric sequalae, including major depression.
(a) Spinal injuries
Following his fall, Mr Moyes consulted the oil rig medic. The injuries as described in the medic's log are set out above at [31], being a mild abrasion to the mid-back and minor cuts to the left elbow. These are not significant. There was no malalignment of the spinal process or paraesthesia in the limbs or swelling recorded. Mr Moyes returned to work, albeit on light duties.
Further, the entries in the medic's log on the following day, as set out above at [32], record that Mr Moyes said he was
feeling much better
and
just a little bit stiff over the spot on my back.
Analgesia was not given to Mr Moyes at either consultation, albeit it is not in dispute that Mr Moyes then had access to Zydol. Mr Moyes had been prescribed Zydol and Tramadol since at least 2006, principally for restless leg syndrome. These drugs are narcotic painkillers and are the same medication, but different product names. He had, on 14 September 2010, been given a prescription for Zydol SR 100 to be taken twice daily for back pain. He continued to take this at the time of the fall, with his most recent prescription having issued on 6 December 2011.[58] Mr Moyes did not say in evidence he took any additional Zydol following the fall.
[58] ts 2,609.
Mr Moyes' evidence was that he remained on light duties until he was evacuated from the rig on 26 January 2012 as the result of an oncoming cyclone. This was only a few days before he would have finished his swing.
Until 13 February 2012, Mr Moyes was corresponding with Mr Paramor, with regard to obtaining further work as soon as possible. On 31 January 2012, he accepted a position to return to work on 1 February 2012, which did not eventuate.
On 13 February 2012, Mr Moyes sent an email to Mr Paramor making his first recorded complaint, since reporting to the oil rig medic, about any pain or difficulty associated with any injury and said:[59]
I injured my upper back in a fall in the sack room last swing and the last couple of days it has been quite painful … and as I have never had pain there before I would like to have it checked out, I was going to see my local GP to get an xray, just in case some of the bones shifted or got fractured … there was a very audible cracking noise when I fell!
[59] Exhibit 3.8, pages 123 - 124.
On the same day, Mr Paramor gave approval to Mr Moyes to see his general practitioner, but he did not do so until 28 February 2012, when he was then referred for an X-ray. There is no evidence of any other investigation being undertaken or of any medication being prescribed on this day.
The X-ray was taken on 2 March 2012. After this, two further radiological tests were performed, being a CT scan on 8 May 2012 and an MRI on 29 June 2012. The expert opinions are divided about what, if any, injury is shown by the X-ray, CT scan and MRI.
The X-ray report dated 2 March 2012 lists the following findings:[60]
There is a cortical disruption involving the anterior aspect of T8 vertebral body suspicious for a fracture.
There is also linear radiolucency traversing the base of the T8 inferior endplate osteophyte suspicious for an osteophyte fracture. Degenerative changes are noted at T8/T9, T9/T10 and T10/T11 levels.
There is normal alignment of the thoracic spine.
Preservation of inter-vertebral disc height spaces are noted.
[60] Exhibit 1.1.
The conclusion given in the report is:
suspicion for T8 vertebral body and inferior endplate osteophyte fracture. Further evaluation with CT is warranted.
A radiologist's report of the CT scan dated 8 May 2012 lists the conclusions or impressions as:[61]
Moderate lower thoracic spondylotic changes. No significant vertebral body height reduction.
A subtle posterior central disc protrusion is noted at the T7/T8 level, it measures a maximum of 3 mm in anteroposterior dimensions and does not cause compression of the spinal cord.
[61] Exhibit 1.2.
The summary in the MRI report of 29 June 2012 is in the following terms:[62]
1.No evidence of marrow oedema or fracture.
2.Small central disc protrusion at T7/T8 with minimal indentation of the ventral aspect of the spinal cord. No evidence of significant cord compression / myelomalacia.
[62] Exhibit 1.3.
Orthopaedic surgeons, Dr Koula Pratsis and Dr Harry Stock, together with consultant radiologist, Dr Clement McCormick, all agreed that:
1.a fracture to the T8 vertebra is not seen on the CT scan;
2.any fracture to the T8 vertebra, caused on 19 January 2012, would have fully healed by 8 May 2012, so that the findings on the CT scan were unsurprising;
3.the CT scan showed, and the MRI confirmed, that there was a subtle/small central disc protrusion at T7/T8;
4.the T7/T8 prolapsed disc or disc protrusion did not compromise any nerves; and
5.the MRI did not show any soft tissue injury and in particular, it did now show any bone marrow oedema or paravertebral soft tissue swelling.
The experts however, did not agree that:
1.there was, in fact, a fracture to the T8 vertebra itself; and
2.the prolapsed disc or disc protrusion at T7/T8 was the result of an acute trauma and therefore consistent with being caused by the fall on 19 January 2012.
Resolution of the disagreement requires consideration of the opinions expressed by the three experts. Mr Moyes relied on the opinion of Dr Pratsis that there was a fracture and the disc protrusion was the result of acute trauma. The opinions of Dr McCormick and Dr Stock supported the contrary view, upon which ENSCO relied.
Before dealing with the respective opinions, there were some further matters accepted between the parties. First, it was common ground that each expert is eminently qualified in his or her respective field.
Secondly, each party accepted that both radiologists and orthopaedic surgeons are practised at interpreting radiological images and that it is not uncommon for there to be different opinions about what is shown on a scan or image.
Thirdly, it was common ground that:
1.X-rays are a 2-dimensional depiction of a 3-dimensional space, so there is overlapping of structures;
2.CT and MRI scans take multiple pictures and build up a 3‑dimensional image; and
3.MRI scans give more biological data - they show soft tissue and bone marrow, including changes in these areas.
Finally, there was no dispute that:
1.any fracture of T8 would have healed by the time of the CT scan on 8 May 2012 and would not then have caused Mr Moyes to experience any ongoing symptoms; and
2.any symptoms associated with the prolapsed disc or disc protrusion at T7/T8 would have settled within three months of the fall and would not then have caused Mr Moyes to experience any ongoing symptoms. This was so irrespective of its origin: that is, whether it was caused at the time of the fall or whether there was an aggravation of a pre-existing, asymptomatic prolapsed disc.
(b) Dr Pratsis' opinion - fracture and prolapsed disc
Dr Pratsis is the orthopaedic surgeon upon whom Mr Moyes attended for the purpose of a medico-legal report when his benefits under workers' compensation legislation were coming to an end. She first saw him on 8 March 2013, then on 17 August 2013 and 29 January 2014. She also saw him on 5 May 2015 and 23 January 2017 at the request of the defendants.
Dr Pratsis viewed the three sets of imaging. In her opinion, there was
an obvious fracture of the inferior endplate of the T8 with minimal displacement.
It represented[63]
an avulsion type of fracture involving a well formed osteophyte at the inferior margin of the vertebral body.
[63] Exhibit 1.5, page 94.
An avulsion fracture involves a piece of bone, which is usually attached to a muscle or a ligament, breaking off from that muscle or ligament. Her view was that there was an unhealed fracture in the X‑ray, causing her to believe that the fracture was recent. However, the fracture was not evident in the CT scan. She said this was consistent with healing. Further, in her opinion, there was a slight irregularity at the site of the fracture when the three-dimensional construction in the CT scan was viewed. This irregularity supported what she had seen in the X-ray because it represented the healed fragment in a displaced position.[64] Her opinion was not affected by the MRI, which did not show any injury to the soft tissue. Any soft tissue injury associated with a fracture would, in her opinion, have healed after five months.
[64] ts 1,528.
Insofar as the prolapsed disc at the T7/T8 was concerned, Dr Pratsis' opinion was that, on the balance of probabilities, the disc injury occurred at the same time as the fracture to the T8 vertebra. In her opinion, the chances of it not being from the fall were less than the chances of it being produced by the fall.
Her opinion on the prolapsed disc was informed by a number of factors namely:
1.her belief that there had been, in fact, a fracture to T8;
2.her view that, although there were pre-existing degenerative changes in Mr Moyes' spine, they were not associated with this area; and
3.that prior to the fall, Mr Moyes had been working as a rigger and scaffolder without symptoms which would not, in her opinion, be possible if he then had a prolapsed disc.
In regard to the third factor referred to above, I note that Mr Moyes does not appear to have told Dr Pratsis that he was taking Zydol throughout the time he was working on the oil rig. Dr Pratsis accepted Zydol is prescribed to treat mild to medium pain. Counsel at trial did not raise this with her. I am therefore left in the position that Mr Moyes has not demonstrated that this additional information would not have affected Dr Pratsis' opinion as to the probability that the disc prolapse occurred at the time of the fall.
(c) Dr Stock's opinion - no fracture; pre-existing prolapsed disc
Dr Stock examined Mr Moyes on 8 May 2012. By chance, Mr Moyes already had a referral in respect of a knee injury for this occasion and the opportunity was taken to consider his back complaint.
Dr Stock sought to ascertain if any orthopaedic intervention was required for the back complaint. He did this by endeavouring to localise the level of any problem so as to determine treatment. He was not able to do this based on the radiological findings.
Dr Stock did not see, and had never seen, the X-ray from 2 March 2012 or any report of that X-ray. He did however, have the CT scan report, albeit he did not see the CT scan until after the consultation of the 8 May 2012.
When Dr Stock examined him on 8 May 2012, Mr Moyes was able to walk without assistance. His pain seemed to be centred around the paravertebral muscles at the thoracic region and mainly radiated towards the left side in the lower thoracic region. The report of the CT scan did not indicate any fracture and so he ordered the MRI scan.
Dr Stock next saw Mr Moyes on 17 July 2012, after the MRI, which did not show any fracture, and significantly in his view, no marrow oedema. Had there been a traumatic fracture, then he would have expected to see marrow oedema for up to 12 months after the fall. Its absence suggested a lack of any fracture, although it did not rule out the possibility of a fracture.[65]
[65] ts 2,009; ts 2,021.
Further, and inconsistent with a significant fracture of the vertebra, are the following:
1.the vertical heights of the vertebra were good and symmetrical; and
2.the posterior elements, that is, the back part of the vertebra, were maintained, suggesting there were no loose elements or any swelling within these elements.[66]
[66] ts 2,012.
Next, whilst there was a prolapsed disc at T7/T8, he did not consider this was the result of acute trauma because there was disc degeneration at other levels in the spine and there were osteophytes from these levels as well. The overall picture of the prolapsed disc was, in his opinion, age appropriate and not recent.[67]
[67] ts 2,026.
Dr Stock noted that Mr Moyes had a thoracic kyphosis, being a forward curvature of the spine of 20 degrees. A kyphosis can be caused developmentally, or be due to trauma. In the case of trauma, a vertebra is crushed, usually at the front end giving a wedge deformity. In this case, the spine showed no obvious deformities and so, in his opinion, the kyphosis was developmental, being consistent with all 12 thoracic vertebra being slightly narrow at the front, as compared to the back, giving the appearance of the kyphosis.[68]
[68] ts 2,010.
Dr Stock's ultimate diagnosis was simply stiffness in the thoracic spine which could be treated with a gym based flexibility and strengthening programme.[69]
(d) Dr McCormick's opinion - no fracture; pre-existing prolapsed disc
[69] ts 2,012 - ts 2,013.
Dr McCormick has never been consulted by Mr Moyes, but he viewed the X-ray, the CT scan and the MRI.
In his opinion, there was no fracture of T8 vertebra. Further, the CT scan showed that Mr Moyes had a degenerative condition called disseminated spine or hyperostosis. The existence of hyperostosis, together with the nature of the images and X-rays produced, explained why the radiologist who took the X-ray concluded from that X-ray that there was
a suspicion for T8 vertebral body and inferior endplate osteophyte fracture.
(emphasis added)
On viewing the CT scan, it was apparent to Dr McCormick that there were osteophytes, or spiny projections, from the end plates of T8 and T9. The osteophytes project from vertebrae into the anterior longitudinal ligaments, being the muscles, which run all the way down the front of the spine. The osteophytes grow and will eventually meet, although there was, at that time, still a gap between them. This same pattern was repeated in the vertebra below. On the next level down, the osteophytes had in fact almost joined, whilst those on the level below that were yet to meet. Eventually, the osteophytes will actually join and the spine will become very stiff. This is consistent with Dr Stock's opinion.
When the CT scan was viewed at trial, Dr McCormick's description of the characteristic appearance of spinal hyperostosis was self-evident, namely[70]
the bone is … flowing over the vertebral body surfaces.
[70] ts 2,031.
In Dr McCormick's opinion, the X-ray of the front of the chest showed where the osteophytes from T8 and T9 had yet to meet. This gap was what, in his opinion, was being interpreted by some, including Dr Pratsis as set out above at [115], as a fracture. It was not an unreasonable interpretation because an X-ray is a projection of all the three-dimensional structures in the chest onto a two-dimensional film. These structures included not just the spinal process, but also the chest wall, the ribs and the contents of the lungs, particularly the pulmonary vessels. This resulted in a lot of overlapping of structures, giving rise to composite shadowing which obscured the true nature of the structures.
Dr McCormick's opinion was further informed by:
1.the absence of swelling of the paravertebral soft tissue, although he acknowledged that such absence by itself did not exclude a fracture; and
2.the margins of the putative fracture were straight and quite sharply defined.[71]
[71] ts 2,030.
Further, in Dr McCormick's opinion, the mechanism of injury was not likely to cause a fracture through the front of the spine.[72] The relevant osteophytes were at the front of the spine and at least 15 cm from the back. In his opinion, it is very unlikely that a fall onto a person's back would cause a fracture, let alone an isolated fracture, to an osteophyte at the front. A fall onto the back, he said, was usually associated with an injury to the bony structures at the back, being the posterior ribs and the articulations with the vertebral column.[73] The essence of Dr McCormick's opinion about this is encapsulated in this exchange:[74]
Can I ask this, the absence of other bony injuries to that area, and because it's limited to the fractures at the front, is that significant in any way? Would you expect there - if I'm going to damage osteophytes at the front of my spine by falling backwards, would you - is it likely there would be other skeletal injury?---Most certainly. I was the radiologist at a spinal unit at Royal Perth Hospital for many years, and I cannot recall ever seeing an isolated fracture of an osteophyte at the front of the spine. They're only seen with severe fractures to the rest of the spine, and the reason is that they're in a fairly protected position, and even, even when you do see fractures of osteophytes, it's usually due to what's called an axial load injury, in which case the force is in this direction. It's either a fall on the head or a blow on the head - - -
Or landing on your feet - - -?---Yes.
- - - because you've fallen?---That sort of injury, and with an element of flexion sometimes, which you can understand would snap, tend to snap an osteophyte in that position, but this is the opposite. This is an impact on the back, and it's very difficult to visualise how that would cause bony damage to the front of the spine.
And bony damage limited to one place?---Exactly.
(e) Findings on physical injury
[72] ts 2,034.
[73] ts 2,034.
[74] ts 2,037.
Having considered all of this expert evidence, I accept the opinion of Dr McCormick and find that T8 was not fractured. Dr McCormick was the most comprehensive, logical and persuasive. He gave extensive consideration to the relevant anatomy, the mechanism of injury and the nature and limitations of the radiological materials. The presentation at trial to Dr McCormick of the CT scan readily and effectively showed the spinal hyperostosis and the gap between the osteophytes at T8 and T9 about which he spoke. Not only does his opinion accord with logic and commonsense, it is underpinned by his experience, not just as a radiologist, but as a radiologist who worked for many years in the spinal unit at Royal Perth Hospital. This opinion is consistent with Dr Stock's opinion as set out above at [124] - [125]. Given the accepted limitations of X-rays, there is clearly scope for misapprehension. Dr Pratsis herself, who opined for an unhealed fracture from the X-ray, acknowledged that experts can come to different conclusions. Here, it should be noted, that the reporting radiologist, who took the X-ray and who did not give evidence, only suspected a fracture of T8 vertebral body and the inferior endplate osteophyte and Dr McCormick explained that suspicion by reason of the spinal hyperostosis as set out above at [133]. This is why the CT scan and the MRI were ordered.
Further, Dr Pratsis did not address the mechanism of injury to the back or the other anatomical matters referred to by Dr McCormick, particularly the location of the osteophyte at the front of the spine or the spinal hyperostosis as detailed above at [135].
Dr Pratsis was the only expert to express the opinion that the prolapsed disc was the result of an acute trauma and therefore caused by the fall. However, the three matters which informed her opinion are, in my view, now not sustainable. First, I have found there was no fracture at T8. Next, she could not have considered Mr Moyes' use of Zydol when giving weight to his capacity to work as a scaffolder and rigger because she did not know about it. Finally, the weight of the expert evidence was that other degenerative changes were proximate to the prolapsed disc. Dr Pratsis did not consider them proximate and this influenced her opinion. For these reasons, I do not accept Dr Pratsis' opinion.
I accept Dr Stock's opinion of the prolapsed disc arising from naturally progressing degeneration. This is also consistent with the evidence of Dr McCormick above at [131] and [132] and also that of Dr John Low, occupational physician, as set out below at [322]. In these circumstances, I am not satisfied, on the balance of probabilities, that the prolapsed disc was the result of trauma from the fall.
These findings, in effect, mean that the radiological evidence did not support an injury of any significant nature to the thoracic spine necessitating orthopaedic intervention.
These conclusions do not preclude a finding that a fall onto the back could cause a pre-existing prolapsed disc to become symptomatic. Each of the experts agreed that this was open, but there is no evidence about what, if any, symptoms or restrictions would have been associated with this, save one could infer there would be some pain and stiffness. However, even if this was the case, it is uncontested that any symptoms from either a fracture or a prolapsed disc would have settled by the time of the CT scan on 8 May 2012. That being so, there is no explanation in the radiological evidence for the pain symptoms of which Mr Moyes complained, and continued to complain, after this date.
Bruising and swelling of the thoracic spine
(a) The evidence of bruising and swelling
The entries in the oil rig medical log make it clear that at the time of the two consultations, there was a mild abrasion to the mid-back and minor cuts to the left elbow. There is no description of bruising or anything consistent with the early stages of bruising. There was also no description of swelling, as later claimed by Mr Moyes in evidence as set out above at [70].
Mr Moyes did not give evidence of any bruising or any issues arising from bruising.
No one, including any medical practitioner, has documented that they saw any bruising on Mr Moyes' skin or any swelling of Mr Moyes' back. Further, I can find only one entry in any medical report concerning a claim by Mr Moyes of bruising to his thoracic spine near the time of the fall. This appears in the AMS 7 form completed two years after the fall on 24 January 2014, pursuant to the provisions of the Workers' Compensation and Injury Management Act 1981 (WA) and WorkCover WA Guides by Dr Andrew Fairhurst. This form was completed by Dr Fairhurst on the basis of the history provided to him by Mr Moyes and recites as follows:[75]
[Mr Moyes] recalled that his back was bruised and he felt that he had been 'struck with a star picket'.
This form does not refer to swelling.
[75] Exhibit 2.1, page 398.
Dr Pratsis first saw Mr Moyes on 8 March 2013 for the purpose of a medico legal opinion. On this occasion, Mr Moyes complained of on‑going pain and abnormal pain sensations over the area of his thoracic spine. He also complained of weakness in his spine and legs and stiffness of his thoracic spine. This consultation was requested by Mr Moyes. Dr Pratsis prepared a report following this consultation. A copy of the report was provided by Dr Pratsis to Mr Moyes.
Dr Pratsis could not find any objective explanation for Mr Moyes' complaint of pain in his thoracic spine. Whilst Mr Moyes reported tenderness over the mid-thoracic area and feelings of numbness, tingling and pain when that area was lightly touched, there was no objective testing available to confirm these reports.
Further, whilst Dr Pratsis described some muscle spasms, she accepted that this could be both voluntary and involuntary but, she could not differentiate between the two.[76]
[76] ts 1,535; ts 1,536.
The evidence of Dr Pratsis was that Mr Moyes vocalised a lot of pain and fear of being touched, but he did not object to being touched, such that she could not really tell whether he had the ability to contract his muscle at the right time or it just happened because it was there.
In her report following the consultation with Mr Moyes, she made findings in relation to the sensitive, or as Dr Pratsis described it, the hyperaesthetic muscle spasm, which were explicable given that Mr Moyes had suffered, in her opinion, a crushing injury to the skin causing a severe contusion to cutaneous sensory nerves. By this she meant that there was severe bruising to the fine sensory nerves which are about half a millimetre in diameter and are just underneath the skin. These nerves enable us to feel skin and the environment. These type of injuries are not able to be observed and can take up to three to four years to resolve and are, in her opinion, difficult to treat.[77] Dr Pratsis not only reported this in writing to Mr Moyes, but she also explained it to him on 8 March 2013, being before he attended Dr Fairhurst on 24 January 2014. Mr Moyes had a good understanding of Dr Pratsis' opinion: see below at [343].
(b) Findings on bruising and swelling
[77] ts 1,550.
There are therefore two possible types of bruising here, being:
1.general bruising, as understood by laymen, as to which, apart from Mr Moyes' complaint to Dr Fairhurst on 24 January 2014, as set out above at [144] and below at [348], there was no evidence of external bruising to the thoracic area. In particular, bruising was not noted by the oil rig medic on either attendance upon him by Mr Moyes. Ordinarily, as a matter of general life experience, if there was this kind of bruising, then it should have been apparent at least on the following day; and
2.the kind of bruising to fine sensory nerves to which Dr Pratsis referred above at [149], but which she admitted was generally outside her field of expertise and that she was hypothesizing because there was no orthopaedic explanation for Mr Moyes' complaints of pain. Given that Dr Pratsis was hypothesizing, little weight can be given to this evidence. In any event, this area of medicine belongs to the pain management specialist, whose evidence is set out below at [226] - [298].
I do not accept that there was any general bruising as understood in the lay sense. However, I will put this aside on the basis that this was not explored at trial.I have already rejected Mr Moyes' claim of swelling: above at [92].
Bruising of the cutaneous sensory nerves, as described by Dr Pratsis, is however something to which I will return when dealing with the evidence of the pain management specialists.
Mr Moyes' medical treatment
Following the fall, Mr Moyes reported to the oil rig medic. As noted, he was found to have a mild abrasion to his mid-back and minor cuts to his left elbow. The left elbow was cleaned and dressed. No other treatment was given. Mr Moyes was offered, but declined, analgesia.
After review the next day by the rig medic, no further treatment was then given, albeit analgesia was again offered and refused. The entries in the medic's log are set out above at [31] and [32].
Next, on 28 February 2012, Mr Moyes consulted his general practitioner, Dr Michael Dewing, at Bridgetown, when he was referred for an X-ray, which was performed on 2 March 2012.
The findings in the X-ray report are set out above at [103] and [104].
Mr Moyes gave evidence that Dr Dewing informed him of the result of the X-ray in a telephone call on 13 March 2012 and then two days later, he completed the first medical certificate for workers' compensation. No further treatments or arrangements were made for treatment until Mr Moyes again consulted Dr Dewing on 13 April 2012, when Dr Dewing prescribed Endone, which is oxycodone hydrochloride. More Endone was prescribed on 24 April 2012, albeit this consultation appears to also have involved some consideration of a pre-existing finger injury.
Mr Moyes commenced treatment with Bridgetown Physiotherapy on 4 May 2012. He attended physiotherapy twice a week for about three months.
The CT scan recommended in the X-ray report was performed on 8 May 2012. The only finding of possible relevance on the CT scan was a[78]
subtle posterior central disc protrusion at the T7/T8 level.
The CT conclusions are set out above at [105].
[78] Exhibit 1.2.
On the same day, Mr Moyes consulted orthopaedic surgeon, Dr Stock, who had the benefit of the scan report.
On 8 May 2012, Dr Stock reported that Mr Moyes complained of pain centered around the paravertebral muscles at the lower thoracic region radiating towards the left side in the lower thoracic region. Mr Moyes had full lumbosacral movement, albeit rotation to the left or right was limited to approximately 50%. There was full range of movement of his cervical spine. Dr Stock did not see any evidence of thoracic fractures, including on the CT scan. There was some inflammation of the costotransverse joint. Accordingly, Dr Stock arranged for an MRI.[79]
[79] Exhibit 1.5, page 73.
The MRI was conducted on 29 June 2012. Prior to this, Mr Moyes returned to Dr Dewing on 11 May 2012, when OxyContin was added to his medical regime. It was however, discontinued 11 days later due to an 'adverse reaction'.[80]
[80] Exhibit 1.5, page 47.
Following the MRI, Mr Moyes saw Dr Dewing who reassured him that the MRI showed only a minor 'disc bulge'. The MRI report summary is set out above at [106].
Dr Stock reviewed Mr Moyes on 17 July 2012, when he had available to him the MRI. He reported that there was no evidence of marrow oedema or fracture and that Mr Moyes' spinal cord appeared to be normal. He had a thoracic kyphosis, but the majority of his discs appeared to be normal.
Dr Stock recommended that Mr Moyes continue with his gym based flexibility and strengthening program and recommended utilising the services of Ms Margaret Rhodes, an exercise physiologist from Maximum Results Exercise Physiology in Bunbury. In Dr Stock's opinion, the pain which Mr Moyes experienced was not caused by any structural abnormalities visible in the imaging and there was no need for any surgical intervention, nor any pain management intervention, in terms of injections in and around the thoracic spine.[81]
[81] Exhibit 1.5, page 76.
Following this consultation, Mr Moyes had his first session with Ms Rhodes on 10 August 2012, when he was assessed and provided with a structured exercise program to restore his functional capacity. He attended weekly sessions for the next 18 weeks. As a consequence of this, he reduced the number of times he visited the Bridgetown physiotherapy clinic to about once a week. He continued to attend Dr Dewing to have prescriptions for Endone filled and to obtain medical certificates for workers' compensation entitlements.
On 28 August 2012, Dr Dewing referred Mr Moyes to pain management specialist, Dr Max Majedi. Mr Moyes did not see Dr Majedi until 17 December 2012.
In the period between the referral and his attendance on Dr Majedi, Mr Moyes continued to attend his physiotherapist and exercise physiologist. He also continued to attend his general practitioner to obtain prescriptions for medications. In September 2012, OxyContin again, together with Lyrica, which was increased twice before Mr Moyes saw Dr Majedi, was added to his pharmacological regime. The medical notes at this time also include a reference to neuralgia.
On 1 November 2012, Dr Dewing referred Mr Moyes to Dr George Wong, a neurosurgeon, whom he saw on 21 January 2013. Dr Wong did not make any diagnosis and recommended that Mr Moyes maintain his current treatment of rehabilitation and pain management.[82]
[82] Exhibit 1.5, page 26.
Shortly prior to consulting Dr Majedi, Mr Moyes saw Dr Mike Hoar, a general medical practitioner, at the same local medical practice as Dr Dewing in Bridgetown. Dr Hoar recorded that Mr Moyes complained of[83]
poor thinking and concentration and lethargy with pregabalin. Doesn't seem to be helping the pain. Mood becoming quite depressed.
Panadol Osteo was prescribed at this time.
[83] Exhibit 1.5, page 50.
In his report dated 19 December 2012, Dr Majedi noted Mr Moyes' complaints as including[84]
pain in the distribution of the T7 radiating across and into the front of the chest … extreme amounts of tension and loss of function throughout his spine.
Dr Majedi did not formally examine Mr Moyes given his presentation of extreme pain.
[84] Exhibit 1.5, page 22.
Dr Majedi's impression was that there was neuropathic pain, muscle spasm and loss of function causing significant pain and ongoing issues throughout the whole spine. In his view, the disc protrusion at the T7/T8 was unlikely to be a major sinister cause of the pain. However, he noted that[85]
with central spine disc protrusions there can be nerve root irritation and cord irritation which is predominantly related to sensory rather than motor function.
Accordingly, he considered that Mr Moyes' pain was to do with loss of function and a heightened sensory system, rather than from significant pathology.
[85] Exhibit 1.5, page 23.
Dr Majedi advised Mr Moyes to work on his fear from pain, the disability which came from that fear and to pace his activities. He encouraged Mr Moyes to work with his naturopath and masseuse. He also encouraged Mr Moyes to engage in activities such as Tai Chi, body balance, yoga, Pilates, to walk in the swimming pool and warm up each morning using a hot shower with stretches and to warm down each evening.
Dr Majedi recommended a pharmacological regime involving clonazepam, gabapentin, clonidine, dantrolene and buprenorphine, in the form of Norspan patches. At this consultation, and at all subsequent consultations, Dr Majedi made it clear that he highly discouraged the use of oxycodone and OxyContin based medications.
Dr Majedi did not consider Mr Moyes' condition to be sinister. He believed Mr Moyes would make slow gradual progress with appropriate rehabilitation. There was no reason why there would not be a full recovery.
Following this consultation, Mr Moyes continued to attend an exercise based program with Maximum Results in Bunbury. Whilst he commenced the use of the medications prescribed by Dr Majedi, he also continued to use Endone until at least April 2013.
Throughout the course of 2013, Mr Moyes continued to undertake his exercise based program with Maximum Results in Bunbury. He attended two to four times per month.
Mr Moyes also continued to see Dr Dewing to obtain prescriptions, with some occasional changes to his medications. On 24 January 2013, Dr Dewing increased his Zydol prescription from 100 mg to 150 mg. On 26 January 2013, Dr Dewing added a prescription for gabapentin, and on 2 April 2013, a prescription for Paxam, whose active ingredient is clonazepam. On this same date, he increased the strength of his Norspan patches from 5 mcg to 10 mcg.
In the meantime, Maximum Results reviewed Mr Moyes' progress in the period from 10 August 2012 to 28 March 2013. A progress report dated 30 March 2013,[86] recorded that:
[86] Exhibit 1.5, page 28.
1.Mr Moyes reported:
numerous setbacks over the past twelve weeks due to changes in his medication, bouts of exacerbated pain symptoms and the psychological effects that his injury is causing;
2.Mr Moyes also reported experiencing:
constant pain
[having] to lie down for one to two hours at a time during the day to relieve his symptoms;
and
over a 24 hour period he would be up for approximately six hours;
3.Mr Moyes reported his mid-thoracic spine region felt like it was
set in concrete;
and with a pain he described as
a dull ache with an electrical tingling expanding pain with frequent sensations of stabbing spasms when he moved quickly or breathes rapidly.
4.Mr Moyes reported his pain as being at a level of 4 to 6 and up to 6 to 7 out of 10, when on medication, with 10 being extreme pain;
5.Mr Moyes self-reported functional tolerances in some areas, like sitting and standing, had improved from five minutes to twenty minutes in each case. There had been some improvement in his capacity to walk up and down stairs, lift light loads from bench height and to push/pull. There was also some limited improvement in tests regarding his range of motion and postural alignment function.
On 14 March 2013, Dr Dewing made a referral to a psychiatrist, Dr Dennis Tannenbaum. Mr Moyes did not see Dr Tannenbaum until 15 April 2013, which is the same day he saw Dr Majedi for the second time.
Although Mr Moyes continued to attend Maximum Results fortnightly, he ceased his attendances at Bridgetown Physiotherapy on about 9 April 2013.
On 15 April 2013, Dr Majedi's impression of Mr Moyes' condition remained unchanged. At the time of this consultation, Dr Majedi recorded Mr Moyes' sleep had improved and his movement was better. Mr Moyes reported concern about the length of time it was taking to get better. Dr Majedi made some adjustments to Mr Moyes' pharmacological regime. Dr Majedi increased the dose of Dantrolene, the strength of his Norspan patches and added melatonin to assist with sleep. He recommended continuation of the rehabilitation exercises and the provision of psychological support with one to one cognitive behavioural therapy.[87]
[87] Exhibit 1.5, page 34.
On 15 April 2013, Dr Tannenbaum diagnosed Mr Moyes with very severe depression. In his letter to Dr Dewing following the consultation, Dr Tannenbaum listed Mr Moyes' complaints as being:[88]
entirely isolated at home, lies down for the entire day (15 - 18 hours a day) and does the minimum amount to survive. He does not maintain usual hygiene and washing and he cannot clean his house, and he seems to be highly dysfunctional.
[88] Exhibit 1.5, page 32.
Dr Tannenbaum prescribed Cymbalta and Amitriptyline. He recommended Mr Moyes return in a month. However, Mr Moyes did not return for four months, until 5 August 2013, when he informed Dr Tannenbaum he had ceased taking the Cymbalta on the recommendation of his pharmacist. Dr Tannenbaum re-prescribed Cymbalta, advising that it be reintroduced slowly in increasing dosages.
Dr Tannenbaum impressed me as being very dogmatic once he had reached a position. For example, he knowingly did not complete the PIRS form in accordance with the WorkCover requirements because he disagreed with those requirements. It was only upon persistent questioning that he eventually acknowledged he had not even attempted to perform the task asked of him.[396] In the same way, he was not prepared to consider Mr Moyes' depression was not primary or that any of the matters he learned about Mr Moyes' capacities in 2017 were relevant to his opinion.
[396] ts 1,752.
Dr Tannenbaum made his opinion of Mr Moyes clear by describing him this way:[397]
He struck me as a phlegmatic kind of understated individual who didn't exaggerate.
[397] ts 1,679.
This description of Mr Moyes is wholly inconsistent with my own assessment of him in evidence and of statements made by him in various documents when describing the events relating to the fall and his symptoms, including comments purportedly made by him and repeated in medical reports, notes of conversations with Mr Moyes over time and his own emails, all set out above.
I also find it surprising that Dr Tannenbaum was not in any way troubled by what he had seen in the surveillance footage. The footage, whilst by no means comprehensive, demonstrates that Mr Moyes could carry and start chainsaws, carry items like bags of materials and jerry cans, garden, care for horses, drive alone, drive to get petrol, operate a crane, repeatedly walk up and down stairs unaided and could actively interact with visitors. Significantly, he appeared to do all of these things without apparent discomfort.
It is clear from the attributions made, when completing the PIRS, that Dr Tannenbaum considered Mr Moyes severely impaired in various areas. He considered Mr Moyes' capacity to attend to his self‑care and personal hygiene to be akin to a person requiring
supervised residential care who if unsupervised may accidentally or purposely hurt themselves
as opposed to someone who could not live independently without regular support. Likewise, he considered his social and recreational disability was akin to someone who never leaves his place of residence and who tolerates the company of family.[398]
[398] ts 1,756; ts 1,757.
Insofar as Mr Moyes' travel was concerned, Dr Tannenbaum considered his disability was akin to someone who found it extremely uncomfortable to leave own residence, even with a trusted person.[399] These attributions do not sit comfortably with the surveillance footage.
[399] Exhibit 2.3, page 433.
To my mind, Dr Tannenbaum gave insufficient consideration to this meaningful disparity, particularly when put together with the other inaccurate factual matters, which were drawn to his attention.
In addition, Dr Tannenbaum's opinion was very clearly that Mr Moyes' depression resulted from his pain, which limited his capacities and activities. Pain was the root cause of Mr Moyes' issues and until this pain is addressed, Dr Tannenbaum did not consider there would be any lasting change in Mr Moyes' psychiatric condition. Dr Tannenbaum did not consider the opinions of the doctors in physical medicine, all of whom, with the exception of Dr Fairhurst, clearly stated there is no organic explanation for Mr Moyes' ongoing physical pain. Dr Tannenbaum did not consider the implications of this on his diagnosis, or in fact, on the requirement for any treatment of Mr Moyes. In fairness, Dr Tannenbaum was not asked about these matters by counsel.
When all of these factors are considered together, and given my adverse findings as to Mr Moyes' credibility, I cannot accept the opinion of Dr Tannenbaum to the extent that any depression Mr Moyes suffers is caused by his fall and consequential physical injury therefrom and its associated pain.
Dr Terace
Dr Terace only saw Mr Moyes on two occasions and then, in a medico legal context. Dr Terace also made a diagnosis of major depressive disorder albeit, he considered that:
1.in December 2014, the disorder was of moderate severity; and
2.in September 2017, it was of mild to moderate severity, although probably closer to moderate.
On both occasions, Dr Terace qualified his diagnosis by:[400]
Assuming the veracity of the history and the absence of embellishment or exaggeration of psychological symptoms for the purposes of the claim.
The 'history', of course, includes details of Mr Moyes' life before the fall, the fall itself and the injuries arising therefrom, together with all subsequent developments in Mr Moyes' life.
(a) The provision of medical evidence and other information to Dr Terace
[400] ts 2,196; Exhibit 4.1, page 369.
For the purpose of preparing his medico-legal report in December 2014, Dr Terace was provided with a considerable amount of material. It appears to be all of the medical reports from the various doctors and other associated fields, including physiotherapists and exercise physiologists, and other medical records, including reports regarding investigations and treatments given by reason of the fall. After the consultation, Dr Terace was provided with additional materials relating to Mr Moyes' email communications with GRN between 4 December 2011 and 13 February 2012, together with information about Mr Moyes' involvement with Zinnecker House. Dr Terace was not provided with any surveillance materials.
Mr Moyes also brought some materials with him to his appointment with Dr Terace. He brought Dr Tannenbaum's report dated 19 March 2014, together with his assessment of permanent whole person impairment and his workers' compensation AMS forms 5 and 6 and the specialist musculoskeletal physiotherapist Glenn Ruscoe's report dated 2 September 2013. All of these materials had already been provided by ENSCO's lawyer. I note that all the materials provided by Mr Moyes unequivocally supported a view that his level of disability was significant and his prognosis poor.
Dr Terace has a standard approach to consultations. He does not read any associated documentation until after he has spoken with the patient. First, the factual, medical and legal history is taken and secondly, impressions are formed before reading the any materials.
After completing this process, Dr Terace diagnosed a major depressive episode of moderate severity, which was not primary. He qualified his opinion as set out above at [683].
First, it is clear that Mr Moyes was not accurate and truthful with Dr Terace.
As to Mr Moyes' past history, he first told Dr Terace that he had never suffered from a psychiatric or psychological condition.[401] This is inconsistent with Dr Dewing's evidence that Mr Moyes was seriously depressed for two years after a motor vehicle crash in which his girlfriend was killed, as referred to above at [274]. Further, he did not tell Dr Terace that he had been off work for a couple of years as a result of grieving for his girlfriend.[402]
[401] Exhibit 4.1, pages 371 - 372.
[402] ts 690 - ts 691; ts 694; Exhibit 4.21, pages 544 - 545.
Secondly, whilst Mr Moyes told Dr Terace about his restless leg syndrome, it does not appear given what is written he told Dr Terace he had been using Tramadol/Zydol for this condition from about 2007. To the contrary, Dr Terace was left with the impression that the restless leg syndrome was 'unrelated to medication'.[403]
[403] Exhibit 4.1, page 372.
Thirdly, whilst Mr Moyes told Dr Terace about the MRI he had in late 2011 on his lumbar spine, he did not inform him of the issues he had had with his lumbar spine in 2001 and 2005. Further, he told Dr Terace that he was prescribed Tramadol in December 2011 for that condition which had, in any event, resolved within 2 - 3 months of his work accident. He did not however mention the knee injury which he also suffered around the same time.
Dr Terace expressed his opinion that the restless leg syndrome, the precise nature of which was unclear to him, likely represented some form of chronic anxiety disorder in accordance with his history, signifying that Mr Moyes was already predisposed to the development or contraction of a new psychiatric condition.[404]
[404] Exhibit 4.1, page 374.
Fourthly, Dr Terace appears to have specifically asked Mr Moyes about major life events and stresses in the last five years. Mr Moyes identified only two events, namely the breakdown of his last relationship which he said occurred three months after the date of the injury in January 2012, and the death of his dog 12 months prior to the examination by Dr Terace. Mr Moyes failed to tell Dr Terace about his blacklisting and loss of employment with ENSCO.
As to the fall, Mr Moyes told Dr Terace he slipped on spilled polymer and became airborne falling 1 m onto his mid-thoracic spine whereupon he heard a cracking sound. He experienced acute mid-back discomfort. He reported the incident to his supervisor, but continued to work initially until the end of his shift.
Insofar as any physical injuries were concerned Dr Terace relied on the materials provided to him.
Insofar as any information provided by Mr Moyes about the onset of any psychological symptoms Dr Terace reported[405]
Mr Moyes was uncertain as to when he first began to feel depressed but recalled feeling very angry, and described depressed mood and anger associated with his physical injury and discomfort and the restrictions associated with it including his inability to travel, his relative isolation, and stated that the prescription of Lyrica worsened his depressed mood and that at the time he developed suicidal ideation associated initially with cognitive deficits which subsequently improved.
[405] Exhibit 4.1, page 365.
Dr Terace's opinion as to the cause of Mr Moyes major depressive condition was this:[406]
if we assume the veracity of the history, and that his physical symptoms, discomfort, disability and impairment are a product of the events of the date of injury January 2012 in the context of his employment, then the events of the date of the injury 2012 in the context of his employment significantly contributed to the initiation or onset of the psychiatric condition and continue to contribute to the persistence of the condition.
[406] Exhibit 4.1, page 375.
Dr Terace also considered however that there have been other factors which also contributed to the onset, initiation and persistence of the condition. Those factors were:[407]
1.the end of his relationship with his girlfriend of two years, three months after the date of the injury 2012;
2.the workers' compensation process, including the cessation of payments in or about November 2013, which led to a dramatic increase in distress associated with suicidal ideation which lasted at least six weeks with the cessation of weekly payments;
3.his fears for his future work;
4.financial concerns; and
5.the death of his dog '12 months ago'.
It is clear that Dr Terace's attention was not drawn to the blacklisting and termination of employment and other events referred to above at [268], all of which occurred after but near to the fall.
[407] Exhibit 4.1, page 376.
A most significant area about which Mr Moyes was not truthful was that he denied post fall recreations, hobbies, sports or crafts other than:
1.Pilates once per week;
2.browsing language websites for 15 minutes every second day;
3.reading the dictionary for 10 minutes per week; and
4.watching television for 1 hour (in the last month).
This is wholly inconsistent with what is known about the nature and extent of, for example, Mr Moyes' chainsaw interests and related activities.
Further, there appear to have been some significant embellishments and understatements by Mr Moyes regarding his post fall socializing, namely:
1.Mr Moyes said he had a carer 5 days per week when in fact, as Mr Moyes himself accepted in evidence, the carer only came 2 ‑ 3 days per week;
2.from a social perspective, Mr Moyes said he only had one visitor 2 - 3 times per week when in fact, Craig Dillon was visiting for periods of time and/or was living there and others I have already mentioned also visited, although less often. There was also no mention of outings to the forest to exercise the dogs or to cut firewood;
3.Mr Moyes said he 'rises from bed' at 11.00 am when, on 5 out of the 10 days when surveillance was conducted in November and December 2014, which included the morning, he was seen doing things between 8.00 am - 9.00 am; and
4.his Zinnecker House activities.
Further, Dr Terace did not consider Mr Moyes' major depressive disorder was primary because it did not manifest itself within weeks of the fall. Here, it is pertinent to recall Dr Majedi's evidence that, for a disc protusion, there should have been 'immediate pain', or that it might 'take a few days to ramp up', or 'a week': see above at [289]. Unlike Dr Tannenbaum, Dr Terace considered that any expressions of low mood by Mr Moyes in early 2012 were within the realm of normal human experience.
Given the material available as to Mr Moyes' mood and his activities in the weeks and months after the fall and for the reasons which follow, I accept Dr Terace's opinion that the depressive disorder is not primary.
In his first report, Dr Terace also offered his opinion that abnormal illness behaviour was suggested in Mr Moyes' case but, he said there was, at that time, insufficient evidence to declare it to be definitive. He opined that the matter required further review and opinions should be sought from experts in physical medicine, such as a consultant occupational physician and a consultant rheumatologist.[408]
[408] Exhibit 4.1, page 371.
This opinion, together with Dr Terace's subsequent opinion expressed after he had seen the surveillance footage, was the subject of extensive cross-examination over four days by senior counsel for Mr Moyes.
The thrust of the cross-examination was that by raising abnormal illness behaviour, Dr Terace demonstrated bias. It was submitted that as a consequence, he had not critically and impartially analysed the materials before him, in particular, the surveillance footage, such that any opinion as to the presence of abnormal illness behaviour, and in particular 'malingering', which is conscious abnormal illness behaviour, was without merit.
It was also submitted that, in any event, any allegation of malingering needed to be pleaded by ENSCO, or at the very least, that that issue needed to be squarely put to Mr Moyes in cross‑examination. An allegation of malingering is more than a matter of exaggeration of symptoms, but rather, an absence of the symptoms reported for the purpose of making a claim. This, it was submitted, had not been done and this evidence could not now be admitted. I do not agree.
It is true that Mr Moyes was never asked directly if he was malingering, or if in fact, he was exaggerating his symptoms or disabilities for the purpose of this claim. It can be confidently assumed that, given his other evidence, had he been asked either of these things, then he would have denied them.
Mr Moyes was however, challenged at length about his capacities and activities over time. He was particularly cross-examined about the fact that he had not accurately represented his capacities and activities to all the doctors he had seen, that is, he had been doing more than he revealed. It was suggested he was exaggerating his disability and did not require the assistance he had been receiving. When considered as a whole, and in the context that he was initially receiving WorkCover payments and subsequently actively pursuing a common law claim, the clear intent of this line of questioning was to suggest that he was not being truthful in order to make out this claim.
I consider that Mr Moyes was given every opportunity to answer this allegation, no matter what name it might be given. In addition, a number of the other witnesses, including Dr Tannenbaum were either shown or told about activities undertaken by Mr Moyes and given an opportunity to comment upon them. The extent to which this was done varied. It would have been preferable for it to have been more fulsome in some instances, however the opportunity for witnesses to comment upon matters touching malingering was adequate.
Further, Dr Terace's reports were provided to Mr Moyes and it was clear his evidence was to be relied on by ENSCO. Mr Moyes could have been in no doubt that the issue of malingering was to be raised for consideration by the court. I am satisfied then that the issue is properly before me.
Returning then to Dr Terace's evidence as regards abnormal illness behaviour, he explained his reasons for considering this issue, in his first report saying:[409]
Customarily a Consultant Psychiatrist will review the Medical Documents of the experts in physical medicine whenever a physical injury presents in a psychiatric context. This is to confirm or exclude whether abnormal illness behaviour is present. The term abnormal illness behaviour essentially means that there is a disparity between the physical symptoms claimed and what should be expected on the basis of the examination and investigations of an appropriate expert ... Psychiatrists generally believe that most cases of abnormal illness behaviour are outside of conscious awareness and represent the exaggeration of physical complaints for financial or other gain. Such cases are called malingering.
[409] Exhibit 4.1, page 370.
Dr Terace explained this more fully in evidence, particularly about the importance of opinions from those in physical medicine when he said:[410]
… I also stated why the strength of a consultant occupational physician is so important in determining the relationship between the actual physical injury and the degree of illness behaviour … illness behaviour is not a pejorative term, it's normal … the sick role is something that accompanies a physical injury … If you don't have a sick role, you don't get attention for your symptoms and your treatment. And one of the problems is some people actually don't have sick roles and then let their symptoms or their cancer be untreated. So it's necessary to have a certain sick role … illness behaviour can be subnormal, normal or abnormal. In other words, it can be inadequate or it can be normal or it can be excessive. And that depends on the congruence between the physical findings of the most relevant expert and the degree of disability that's displayed relating to that physical injury. And as I stated, that's why consultant occupational physicians are so important, because their training in medicine is general but specifically related to the relationship between physical injury and conditions and expected disability from those injuries. It's one of their unique skills …
This explanation indicates how important the determination of physical injury can be to a psychiatric diagnosis, such as the present.
[410] ts 2,502.
In November 2016, Dr Terace was provided with additional materials including:
1.two reports from Dr Low, consultant occupational physician dated 31 July and 8 October 2016 respectively; and
2.surveillance footage captured in March, April and May 2016.
Dr Low's first report related to his examination of Mr Moyes on 27 July 2016. Dr Low's findings on attempted clinical examination were consistent with significant non-organic/non-physical contribution to his presentation of pain and disability. Further, the findings were inconsistent with the expected natural progression of the physical injuries described by Mr Moyes and having regard to the MRI and CT scans. Dr Low's diagnosis was that Mr Moyes no longer suffered from a physical injury to his back caused by the fall and his presentation of pain and disability were related to psychosocial issues. There was no objective information from a physical point of view which would prevent him from returning to work.[411]
[411] Exhibit 4.10.
Dr Low's second report related to his consideration of the surveillance footage from March, April and May 2016. In his view, the footage was inconsistent with the findings on attempted clinical examination. At the consultation on the 27 July 2016, Mr Moyes demonstrated minimal movement in the back on standing, was unable to fold his arms across his chest when seated and would not do so when leaning against the edge of the examination table. On the footage, he could be seen walking without issue, lifting, twisting, bending, standing and leaning against the railing of the stairs. The surveillance footage reinforced Dr Low's opinion that there was no objective information from a physical point of view as to why Mr Moyes would not be able to return to all forms of employment.[412]
[412] Exhibit 4.10, page 498.
Having viewed the footage and read Dr Low's reports, Dr Terace felt compelled to revise a substantial part of his diagnosis, prognosis and opinion. In his opinion, subject to caveats explained below, he considered there was sufficient evidence to find a definitive diagnosis of abnormal illness behaviour and sufficient to argue that such illness behaviour was probably conscious and therefore, malingering. The caveats on his opinion related to:[413]
1.Dr Low's opinion about the surveillance footage being definitive and being in accordance with the consensus of the medical opinion.
I am satisfied Dr Low's opinion is definitive of the fact that, at the time of the footage, Mr Moyes was not suffering any physical injury from the fall and this accords with the consensus of opinion, or the preponderance of medical opinion from Dr Stock, Dr Majedi and Dr Salmon, whose opinions about physical injuries I have accepted. Further, Dr Pratsis also did not consider that the physical injuries would be symptomatic in 2016.
2.The observations in the 2016 surveillance footage being representative of Mr Moyes' physical status from the time of the surveillance to the present trial.
There is no evidence of any medical change in Mr Moyes' physical condition.
[413] Exhibit 4.3, page 398.
Dr Terace was subsequently shown earlier surveillance footage from 2014 and 2015. He again reviewed Mr Moyes on the 9 August 2017.
In effect, Dr Terace's opinion did not change significantly, although it is necessary to read his multiple reports as a whole. Dr Terace's approach to his reports is idiosyncratic in that he responded to individual correspondence and considered only the material referred to in that correspondence, even when he had received further correspondence with further material.
In this case, Dr Terace's approach meant that when he examined Mr Moyes on 9 August 2017, he did not read any materials other than the letter of instructions. Further, when preparing his report, he only then reviewed his original report of 30 December 2014, a report from Dr Pratsis dated 23 January 2017, a report of Dr Low dated 12 August 2017 and a Disability Services report dated 18 April 2017. On the basis of these materials, he gave these opinions:[414]
1.Accepting the history and validity of the presentation, Mr Moyes suffered a major depressive disorder of mild to moderate severity. In evidence, Dr Terace clarified this by saying he believed it was closer to moderate severity. The condition was also, reactive in nature, in that Mr Moyes had the capacity to enjoy human experiences, for example to discuss his dogs and travel.
2.If the opinion of Dr Low is considered definitive, as it accords the consensus or preponderance of medical opinion, then one needed to consider whether Mr Moyes' complaints of pain entered the realm of abnormal illness behaviour.
3.If any abnormal illness behaviour was conscious, then there was support for malingering or fabrication of symptoms.
4.In regard then to the credibility and reliability of Mr Moyes, as a historian, as to his own perceived impairment incapacity and disability, his self-assessment is significant.
[414] Exhibit 4.6, page 444.
In a subsequent report, after reviewing all of his previous reports including those in which the surveillance footage was considered, Dr Terace, in effect, repeated his concerns about Mr Moyes' credibility given what he considered to be the apparent inconsistencies between Mr Moyes' own accounts of his impairment and what could be observed in the footage. He reiterated his opinion as regards the presence of abnormal illness behaviour and the possibility that it was conscious and that therefore, Mr Moyes was malingering.[415]
[415] Exhibit 4.9.
At trial, Dr Terace's review of the surveillance footage was challenged. It was put that the footage only represented a small portion of the total surveillance conducted and was not representative of Mr Moyes' capacities or condition. Dr Terace acknowledged that he had not been provided with the information about the total number of hours that Mr Moyes was under surveillance. He acknowledged that this information was significant, given that one of the qualifications to his opinion was that the footage needed to be representative of Mr Moyes' capacities.[416]
[416] ts 2,399 - ts 2,400.
Further, it was suggested that Dr Majedi, Dr Salmon and Dr Pratsis had identified a physical origin for the pain being neuropathic or nociplastic, as Dr Majedi said in his letter to Dr Dewing dated 19 December 2012:[417]
I explained to him that his pain is to do with loss of function and heightened sensory system rather than from significant pathology. Hence he needed to work on the fear from the pain and disability that comes from the fear.
[417] Exhibit 1.5, page 23.
Dr Terace confirmed he had taken this opinion into account, but that the presence of a pathology did not mean that abnormal illness behaviour was not also present. This was because there can be something beyond the pathology and that is what he took from Dr Majedi's use of the phrase[418]
rather than from significant pathology
and Dr Salmon's remarks about Mr Moyes[419]
catastrophising.
Dr Low also referred to catastrophising by Mr Moyes: see above at [325.3].
[418] ts 2,287.
[419] ts 2,530.
At trial, Dr Terace conceded he was compelled to a view that his opinion about malingering was not correct.[420] On the basis of the evidence presented to him, his pre-trial opinion of Mr Moyes' capacities was conceivably flawed because there were some materials suggesting Mr Moyes' condition improved in 2016, when some of the surveillance was conducted.
[420] ts 2,502.
That said, Dr Terace did not resile from his position that abnormal illness behaviour needed to be considered. On this issue he said:[421]
Firstly, if abnormal illness behaviour is present, it means that - that - that physicians and physical experts need to be careful about - about prescribing habits and about interventions. Whether they be investigations or treatments, because our first principle is first primum non nocere, first do no - no harm. And the danger if we don't identify abnormal illness behaviour, even of the unconscious kind is that we can, for example, over-prescribe opioids. … but chronic opioid consumption …, is associated with dependence, tolerance and withdrawal. But more importantly can actually make chronic pain worse. So there are physical consequences to identify. And the psychological consequences are - are equally, if not more important. If it occurs in the presence of a major depressive disorder, for example, it means that we need to be even more vigorous in treating the major depressive disorder and identifying the - all the associated psychological and social factors that are involved in a particular case. And treating them with as much vigour as possible. Because if we don't, then the - the prognosis of both conditions, physical and psychological can be worse. So it's an important identification.
[421] ts 2,503 - ts 2,504.
Further, when asked for his final position on the issue he reiterated what he had written in the penultimate paragraph his final report, namely:[422]
I would thus prefer that that surveillance be commented upon by experts in physical medicine to ultimately determine his true impairment and disability from a physical perspective, and that the questions be put to them as to whether there are inconsistencies or disparities between the claimant's complaints of physical symptoms including pain and the level of function or activity observed in the surveillance. And whether the surveillance films are sufficient to argue that there is exaggeration of claimed physical symptoms including pain and associated impairment and disability, and the likelihood that that exaggeration is conscious or unconscious in nature. If there is a consensus, or preponderance of opinion about this matter by the appropriate Medical Experts in physical medicine, then a Consultant Psychiatrist may interpret those opinions to form an opinion as to whether abnormal illness behaviour is present, and possibly the type of abnormal illness behaviour, since abnormal illness behaviour is an historical umbrella term for a range of abnormalities and aberrations, and consider whether the mechanism of exaggeration is conscious or unconscious, depending on all the available evidence on the balance of probabilities.
[422] Exhibit 4.9, page 497; ts 2,592.
Whilst Dr Terace may have backed down from his pre-trial view that Mr Moyes was a malingerer, I ultimately take from his evidence that the determination of a patient's credibility and reliability is central to a determination of a psychiatric condition, particularly with respect to
his true impairment and disability from a physical perspective
as noted by Dr Terace. In this case, the accuracy of Mr Moyes' subjective complaints of pain and the limitations he identified impact on any proper evaluation of his condition and the medical opinions given. Certainly, Dr Terace identified anomalous behaviours in Mr Moyes' presentation and history as compared to what can be seen in the surveillance footage. Further, the diagnosis of the doctors in physical medicine that Mr Moyes has not suffered any ongoing physical injury from his fall has, in turn, raised considerations of abnormal illness behaviour. Further still, there is a plethora of evidence that Mr Moyes has not provided full information regarding his history and that he has also provided incorrect information about that history.
(b) Findings on Dr Terace's evidence
Dr Tannenbaum's diagnosis of primary depression was largely based upon information provided to him by Mr Moyes. He accepted that information. Further, Dr Terace's diagnosis of a secondary depression was also conditional upon the acceptance and validity of Mr Moyes' presentation: see above at [583].
Dr Terace's view was clearly that if Mr Moyes' psychiatric condition is to be compensable, it needed to be a response to the limitations placed upon him by his pain by reason of a physical injury, which in this case, is from the fall. Dr Tannenbaum's opinion is entirely consistent with this in that he went so far as to say there would be no lasting change in Mr Moyes' psychiatric condition of a primary depression until the physical pain he experienced is resolved.
The diagnosis of depression relies upon the veracity of the patient's history, including the occurrence of injury, any ongoing physical symptoms and any psychological symptoms. In this case, the pain management specialists and the psychiatrists have been informed of factual matters by Mr Moyes. By and large, the medicos have accepted his information. However, unlike the medicos, I am required to determine the truth of the information provided by Mr Moyes in an adversarial setting, on the balance of probabilities.
I am satisfied that Mr Moyes was not truthful, accurate and reliable about the forceful nature of his fall, and the injury, pain and limitations arising from that fall, and about many of the other matters as set out above. I cannot accept his evidence.
I am not satisfied that Mr Moyes has suffered a fracture of T8. Nor has he suffered a prolapsed disc of T7/T8. Further, he has not suffered a sensorial disturbance of nerves.
I cannot be satisfied that Mr Moyes has a physical basis for his claimed nociplastic pain. Further, I cannot be satisfied that he developed a psychiatric condition from any injury resulting from his fall, including nociplastic pain. It follows that Mr Moyes has not proved a compensable psychiatric condition.
Even if Mr Moyes was predisposed to the development of a psychiatric condition by reason of some prior chronic anxiety disorder, in accordance with his history as set out above at [692], and that he suffered a mood disturbance within the realm of normal human experience at some unknown time after he last ceased looking for work in March 2012, it does not follow that any present psychiatric illness is causally linked to Mr Moyes' fall.
Conclusion
First, given the concession from counsel for Mr Moyes referred to above at [5], the claim against GRN must be dismissed.
Secondly, the claim against ENSCO must also be dismissed for the reasons outlined above.
Given that I do not, and cannot, accept the evidence of Mr Moyes, it would be inappropriate to now attempt to provisionally assess any claimed loss and damage should I be wrong on the issue of liability, notwithstanding that it would ordinarily be desirable to do so, as suggested by Buss JA in Kerr v Minister for Health.[423]
[423] Kerr v Minister for Health [2009] WASCA 32 [3].
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
MS
Associate to Judge Petrusa3 JULY 2020
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