Muir v Oak Park Formwork Pty Ltd (in Liquidation)

[2010] VCC 1765

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT MELBOURNE
CIVIL DIVISION

SERIOUS INJURY

Case No. CI-09-04032

SHANE PATRICK MUIR	Plaintiff
v
OAK PARK FORMWORK PTY LTD (IN LIQUIDATION)	First Defendant
AND
QBE WORKERS COMPENSATION (VIC) LIMITED	Second Defendant

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JUDGE:	HIS HONOUR JUDGE BOWMAN
WHERE HELD:	Melbourne
DATE OF HEARING:	29 and 30 November 2010
DATE OF JUDGMENT:	8 December 2010
CASE MAY BE CITED AS:	Muir v Oak Park Formwork Pty Ltd (in Liquidation)
MEDIUM NEUTRAL CITATION:	[2011] VCC 1765

REASONS FOR JUDGMENT

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Catchwords: Accident Compensation Act 1985 – s.134AB – chronic pain disorder following upon a physical injury – reliance upon paragraph (c) of the definition of serious injury – leave sought in respect of pecuniary loss damages and pain and suffering damages – whether plaintiff’s ability to engage in suitable employment destroyed – whether burden of proof discharged.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P. Jewell SC with	Williams Winter
Mr M. Ruddle
For the Defendant	Mr P. Elliott QC with	Herbert Geer
Mr P. Gates
HIS HONOUR:

General background

1 This matter comes before me by way of an application pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985, hereinafter referred to as “the Act”. The interests of the two defendants in this matter overlap entirely, and indeed I note that the first-named defendant is apparently in liquidation. In any event, henceforth I shall simply refer to “the defendant”, meaning the plaintiff’s employer at the time of injury – that is, Oak Park Formwork Pty Ltd.

2          The plaintiff seeks leave to bring proceedings in respect of both pecuniary loss damages and pain and suffering damages. In so doing, he relies upon paragraph (c) of the definition of “serious injury” contained in s.134AB(37) of the Act. Whilst the documentation filed on behalf of the plaintiff also indicated a reliance upon physical injuries, Mr Jewell, Senior Counsel on behalf of the plaintiff, made it apparent from the outset that the application was being brought solely on the basis of permanent severe mental or behavioural disturbance or disorder. Accordingly, if it is necessary to say so formally, the application insofar as it relies upon organic injuries is unsuccessful.

3          In essence, the plaintiff is alleging a chronic pain syndrome, this having developed subsequent to his being struck on the right shoulder by a kibble laden with concrete and effectively pinned or crushed between the kibble and a guard rail. This occurred on 23 January 2004. Whilst the circumstances surrounding the occurrence of injury sound dramatic and frightening, there was no argument but that, whilst the plaintiff certainly suffered a physical injury, the organic features of it have not proven to be of great magnitude, and certainly not sufficient to satisfy the requirements of the definition of “serious injury”. Hence, the central issue is whether the mental consequences of the injury are sufficient to meet the more stringent test which applies in relation to such disorders.

4          Mr P. Jewell SC, with Mr M. Ruddle of counsel, appeared on behalf of the plaintiff. Mr P. Elliott QC, with Mr P. Gates of counsel, appeared on behalf of the defendant. The plaintiff gave evidence and was cross-examined. The balance of the evidence was documentary in nature, and tendered by consent. In a case such as this, that was a particularly sensible, helpful and effective manner in which to conduct it. In addition, counsel made detailed and well-prepared submissions.

5          There are three further matters which I might raise by way of preliminary points. These are:

(i)	Counsel agreed that, if I was to find that the plaintiff’s earning capacity had been destroyed by reason of the relevant injury, the statutory test of severity would have been met in relation to both pecuniary loss damages and pain and suffering damages. This approach seems to me to be correct, and, again, sensible. It is the approach which I shall adopt.
(ii)	As I observed from the Bench, cases involving paragraph (c) of the definition pose difficulties for all concerned. The perception of the individual, as opposed to more absolute findings as revealed by radiological investigations, physical testing and the like, assumes a far greater significance. Because more nebulous concepts are involved and objective indicators are, to a considerable extent, removed, cross-examination is more difficult and, from the point of view of the Bench, the problems in determining exactly where the truth lies are also increased. There is the additional problem that, if the condition is genuine, the whole court procedure, and particularly cross-examination, has the potential to add to stress and the risk is established of “tipping the plaintiff over the edge”. Mr Elliott’s cross-examination, whilst covering the matters which best advanced his client’s cause, was exemplary in this regard. Whilst the plaintiff at times showed indications of being subject to stress, and needed a break on at least one occasion, and whilst Mr Elliott put certain matters to him firmly, at no stage was the plaintiff badgered or harassed. As I have said, cases such as this are difficult for all concerned.
(iii)	At the conclusion of the matter, I reserved my judgment. I expressed, at that time, the desirability of having a speedy outcome. I also mentioned that, unfortunately, I have a number of reserved judgments. Upon further consideration, I have determined that, in a case such as this, the decision should indeed be handed down as soon as possible. Accordingly, I have given this matter some priority and, in addition, in order that a judgment can be delivered somewhat more speedily than usual, these reasons are somewhat truncated. I am quite satisfied that the reaction to stress as demonstrated by the plaintiff in the witness box was genuine, and it is best for all concerned that the result be known as soon as possible.

Factual background

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

(i) The plaintiff

7          I have no reason to question the credibility of the plaintiff. Obviously, in a case such as this, his description of the symptoms and restrictions from which he suffers may not have anatomical or organic foundation. However, that he genuinely perceives that he is suffering severe pain and restrictions as described by him is a proposition which I accept. I shall not go through the numerous medical reports in detail. Throughout this judgment, my attention shall be focussed more upon those treating the plaintiff and those who have specialist qualifications in relation to mental disorders.

8          In this regard, the plaintiff’s general practitioner, Dr Rod Guy, reported on 1 December 2008 that the plaintiff would appear to suffer from a chronic pain syndrome and that “he certainly is quite limited in his capacity at the moment”. He has also referred to the matter as a “rather difficult case”, which is no understatement. There is nothing in the report of Dr Guy which I interpret as a suggestion that the plaintiff is anything other than genuine.

9          Dr Terrence Lim, consultant in rehabilitation and pain medicine, treated the plaintiff. When Dr Lim assessed him on 13 March 2007, the plaintiff was so anxious that he had great difficulty “getting his words out”. Subsequent reports refer to the plaintiff as having a very low tolerance to any form of stress and tending to “lose it” quite easily, and to his anxiety levels increasing. In his report to Dr Guy of 17 June 2008, Dr Lim referred to the plaintiff as being highly anxious. Dr Lim made suggestions as to possible employability, and I shall deal with this issue subsequently, but again there is nothing in his reports to suggest that the plaintiff, in his presentation and perception of his difficulties, is not genuine.

10        Dr Stella Kwong, consultant psychiatrist, examined the plaintiff at the request of his solicitors on 17 November 2008. Having examined various reports, she stated that “…they all agreed that Mr Muir has a pain disorder, i.e. his suffering of pain is genuine and not feigned”.

She went on to say as follows:

“A patient with a chronic pain disorder suffers genuine pain except

that there is no physical evidence to any somatic changes”.

In her subsequent report of 25 June 2010, Dr Kwong stated that the plaintiff “impresses me as a sincere historian”. She felt that the fact that he was suffering chronic pain was borne out by his demeanour and his behaviour. Her comments in relation to his capacity for employment shall be discussed subsequently.

11        The plaintiff’s treating psychiatrist is Dr John Honey. Whilst he was initially of the tentative view that the plaintiff may suffer from some psychotic condition, such as bipolar disorder or schizophrenia, his ultimate conclusion was that the plaintiff suffered from a chronic pain disorder which had arisen as a direct result of the work accident. Apart from considering the condition to be severe, Dr Honey, in his report of 5 July 2010, expressed the view that:

“I believe that he is genuine in his complaints of the experience of pain, and no-one who has assessed him, according to the material I have viewed, has asserted that he is malingering”.

12        The defendant has had the plaintiff assessed by Dr Dush Shan, consultant psychiatrist. In his report of 14 July 2009, Dr Shan expressed the view that the plaintiff met the criteria for a diagnosis of chronic pain disorder with both psychological factors and a medical condition. He implicated the incident of injury. Again, there is no suggestion in the report that the plaintiff is malingering or feigning. In his report of 1 June 2010, Dr Shan opined that the plaintiff has a strong belief that he was injured or affected in a number of areas. Dr Shan referred to the plaintiff’s intense belief in the presence of various symptoms which are inconsistent with his activity level but, because of his lack of judgment, he is oblivious to these inconsistencies. Dr Shan went on to say that the plaintiff’s belief about the ways in which his body had been affected by his original injury was an “over-valued idea” – that is, an intense belief or idea held by him which was not classifiable as a delusion. He believed that the diagnosis of chronic pain disorder adequately described the presentation, and further stated that, “The prognosis is that the patient will hold these values and beliefs, no matter what the outcome”. Thus, whilst he also implicated the plaintiff’s personality and habits, again there is nothing in his report which I interpret as being critical of the plaintiff’s credibility or suggesting that his condition is anything other than real or genuine.

13        There is also a somewhat dated report from Carmen Steger, clinical psychologist, who saw the plaintiff on at least ten occasions during 2007. She diagnosed chronic pain problems, also remarking that the plaintiff had become entrenched in chronic pain which had left him with a disabled lifestyle. Certainly there is no suggestion that he was feigning his symptoms.

14        In summary, I accept the plaintiff as a credible witness who is accurately describing his perception of the symptoms and restrictions from which he suffers and there is nothing in the medical material to which I have just referred which would lead me to any contrary view.

(ii) The plaintiff’s background, training and education prior to the injury

15        For the reasons previously explained, I shall be briefer than normal in dealing with aspects of a claim such as this. Suffice to say that the plaintiff is a 40 year old single man educated to Year 10 level and his employment background includes holiday work at an abattoir, working as an apprentice and then a chef at various restaurants, working as a labourer and a tradesman’s assistant in the construction industry and as a machine operator and concrete labourer. As at the time of sustaining the injury with the kibble, the plaintiff was working for the defendant as a concrete finisher. The plaintiff gave evidence that he preferred work in the construction industry to that of a chef.

(iii)	The injury of 23 January 2004
(a)	The state of the plaintiff’s health and activities prior to injury

16        Again, I shall be brief. The plaintiff had suffered a number of physical injuries over the years, such as a knee injury when playing football whilst still at school, a further knee injury associated with a slip and fall when working as a chef, a laceration to the hand and burns sustained whilst working as a chef and a more serious back injury sustained in or about June 1997 when the plaintiff was wheeling a barrow laden with concrete whilst working for Delta Demolitions. Following this last-mentioned injury, the plaintiff was off work for some months and on light duties for a considerable period. He told Dr Strauss that it took some three years to make a reasonable recovery, exercises and physiotherapy being involved, but thereafter he was quite well. He seems thereafter to have been able to perform heavy physical work in the construction industry. The plaintiff has no history of psychological or psychiatric problems prior to the injury of 23 January 2004. He has sworn to this, and I would refer to paragraph 6 of his affidavit of 27 April 2009. This is also consistent with the history given, for example, to Dr Strauss. I accept this. I accept that, as at the date of the relevant injury, the plaintiff was in good physical health and had no history of mental problems or treatment.

(b) The injury of 24 January 2004

17        I have already described in brief form the injury which occurred. A particularly detailed account can be found in the plaintiff’s affidavit in paragraphs 8 to 15.

18        That the nature and circumstances of the accident were somewhat traumatic and frightening is a concept with which I have no difficulty. I shall not go through the various medical reports relating to the plaintiff’s physical injuries and their treatment. Perhaps the situation is best summarised by the treating orthopaedic surgeon, Mr Joseph Robin, who, in his report of 23 April 2008, stated as follows:

“I do not believe the right shoulder injury was a major or significant crush injury, as there was little evidence of soft tissue damage on two MRI scans, he exhibited a full active and passive range of movement on several occasions…it is unlikely that his right shoulder problem is of major functional significance.”

19        Mr Robin referred to the possibility of a cervical spinal problem. The plaintiff had been referred by his general practitioner to Mr Myron Rogers, neurosurgeon, who conducted a neurological examination of the upper limbs which demonstrated all reflexes to be present and symmetric and no evidence of muscle wasting or weakness. Mr Garry Grossbard, orthopaedic surgeon, who examined the plaintiff at the request of his solicitors, felt that the plaintiff had suffered a crushing injury to the chest which involved soft tissue components but could find no structural injury, and thought that the situation had been affected by the presence of what was most likely a chronic pain syndrome.

20        The opinion of Mr Grossbard has been, in essence, echoed by the consultant psychiatrists who have reviewed the plaintiff. Dr Kwong has diagnosed both an adjustment disorder and chronic pain disorder secondary to the injuries sustained at the workplace. In the opinion of Dr Strauss the plaintiff suffers predominantly from a pain disorder associated with unusual personality features, such pain disorder being significant and being a consequence of the work-related accident. Dr Shan, examining on behalf of the defendant, diagnosed chronic pain disorder arising as a consequence of both the physical injury and the plaintiff’s personality and habits. The treating psychiatrist, Dr Honey, has expressed the conclusion that the plaintiff suffers from a chronic pain disorder and that his psychiatric condition arises as a direct result of the work accident. Ms Steger, the psychologist who treated the plaintiff in 2007, at that time diagnosed chronic pain problems with adaptation and adjustment elements. Apparently in relation to the plaintiff’s claim for statutory benefits, certain questions were referred to a Medical Panel pursuant to s.45(1)(b) of the Act. On 12 March 2010 the Panel provided its answers. It expressed the view that the plaintiff was suffering from a mild chronic pain disorder “relevant to the said injuries”. Thus, leaving to one side the question of the severity of the disorder, the Medical Panel came to a similar conclusion to that of the individual experts to whom I have referred. The almost overwhelming expert view is to the effect that the plaintiff’s injury is a chronic pain disorder, and I accept this.

21        I also accept that such injury arises directly from the accident of 23 January 2004. I do not accept the view of Dr Shan that, whilst the pain disorder has arisen as a consequence of the physical injury suffered, the significant or major contributing factor is the patient’s personality and habits. I prefer the views of other experts, such as Dr Honey, the treating psychiatrist, that the pain disorder arises as a direct result of the work accident. Apart from the fact that this is the view of the majority of experts, including the treater, it also seems to me to make sense. The plaintiff had no history of psychological or psychiatric disorders prior to the accident. All his symptoms have arisen since the accident. He suffered a physical injury in the accident, and the chronic pain disorder seems clearly to be related to this. If he did have a vulnerable personality, this did not prevent him from working and living normally prior to the accident and had not manifested itself in any mental disorder. I find that the plaintiff’s chronic pain disorder arose directly from the accident and it is a major contributing factor to the disorder from which he suffers.

22        I am also of the view that the consequences of this injury are permanent within the meaning of the Act in that they will persist for the foreseeable future. Dr Honey has expressed the view that the plaintiff will require regular ongoing psychiatric treatment for the foreseeable future, that he has no current work capacity and that is likely to continue indefinitely and that, even with suitable and successful treatment, the most probable outcome is that the condition will remain stable. Dr Kwong has opined that the plaintiff’s psychological injury has currently stabilised, although deterioration may occur, and was prepared to make an impairment assessment pursuant to the AMA Guides, a pre- requisite for which is permanence. Dr Strauss has stated that the plaintiff is totally and permanently incapacitated. Insofar as they relate to permanence within the meaning of the Act, these are views which I accept. Accordingly, I am satisfied that the symptoms, restrictions and consequences from which the plaintiff suffers are permanent within the meaning of the Act.

23        This does not seem to me to be a case of aggravation, exacerbation or the like. Of course, if it is an aggravation, it is the aggravated condition which, according to the authorities, I must consider. Given that the plaintiff was symptom-free and with no history of a mental disorder prior to the accident, the outcome is probably much the same whether the condition be considered an injury de novo or one by way of an aggravation. I repeat that, in my opinion, it is an injury de novo. If the plaintiff had a particular personality which rendered him more vulnerable to suffering consequences of this nature following a traumatic accident, that does not seem to me to act to the detriment of his claim.

(iv) Developments since the injury

24        Immediately following the incident of injury, the plaintiff was absent from his employment for a period of approximately four weeks. He visited general practitioners, underwent physiotherapy, and was certified unfit for work from early April 2004. He was subsequently referred to Mr Robin. At about this time he was on light duties, and attending work with some absences. He suffered an exacerbation of his condition on 31 March 2004 when he effectively assisted in the rescue of a fellow worker whose hand had become trapped in a dangerous situation. The plaintiff suffered further aggravation of his symptoms, and ceased work again in approximately October 2004. At this time, he also broke a bone in his left ankle, and made a good recovery from this. He believes that he resumed work for a few days prior to being dismissed as of 26 October 2004. There was some dispute as to whether the plaintiff had abandoned his employment and accordingly his services were terminated. The plaintiff denied this, saying that he simply could not attend at work because of his symptoms. I might add that the actual date of termination of employment is not clear, and it may have been 5 November 2004. In any event, the plaintiff has not engaged in employment since.

25        In early 2007 the plaintiff was referred to Dr Terrence Lim, a pain management specialist, at Olympia Private Rehabilitation Hospital. Dr Lim organised the counselling sessions with Ms Steger. In November 2007 the plaintiff attended again at Olympia for an intensive rehabilitation program and, following that, attended on another two occasions in order to reinforce what had been previously learned.

26        On 16 April 2008 the defendant referred the plaintiff to Work Able Consulting, a vocational assessment organisation. A discussion of various employments in which the plaintiff might engage took place. Apparently some arrangement was made about the plaintiff commencing a course in relation to being a security guard. The plaintiff did not attend this, his reason, given in evidence, being that he was not supplied with taxi vouchers and does not “go very well” on public transport. It would seem that the plaintiff also failed to attend subsequent courses, he claiming that he had certificates from his doctor as to his inability to attend. It appears that he also failed to attend or participate in a program called New Employer Services. In oral evidence, he stated that he “just couldn’t get there”.

27        In relation to ongoing medical treatment, some of this has been discussed. The plaintiff now sees Dr Guy less frequently, and may not have seen him for some time, as he is attending upon Dr Honey on a monthly basis.

Ruling

(i) Pecuniary loss damages

28

I am of the view that the plaintiff has discharged the burden of proof in this regard. I am of the opinion that his capacity to earn an income in suitable employment has been completely destroyed, and that this situation will persist for the foreseeable future. I have arrived at this conclusion for the following reasons, which are not set out in order of importance or significance.

(a)	As stated, I am of the view that the plaintiff is a credible witness, that he endeavoured to answer questions to the best of his ability, and that his perception of the pain, restriction and consequences from which he suffers is genuine. In a case of this nature, that seems to me to be a conclusion of some importance. If this be so, his presentation in the witness box and in court generally was one of a person who has difficulty in handling stress, and who presented as a person who would not be an attractive proposition for a prospective employer or be able to handle employment.
(b)	Referring to the consultant psychiatrists who have examined the plaintiff, Dr Kwong has stated that the plaintiff has no current work capacity because of his chronic pain disorder, this condition will continue indefinitely, and it is unrealistic to expect that he will have any working capacity in the foreseeable future. Dr Strauss has stated that, “I believe that he has to be considered to be totally and permanently incapacitated”. Dr Shan has expressed a somewhat confusing view, referring to the plaintiff as being capable of manual work such as food preparation or being capable of obtaining a forklift licence (a proposition that strikes me as surprising) but also stating that, following the litigation process, there may be some improvement in that the plaintiff may seek employment of which he thinks himself capable, this most likely being casual intermittent work. Importantly, the plaintiff’s treating psychiatrist, Dr Honey, has stated, simply, “Mr Muir has no current work capacity, and that is likely to continue indefinitely”. I accept that proposition, and indeed it seems to be the view of the majority of the relevant expert examiners (not that matters such as this are determined by sheer weight of numbers). However, it seems to me to be a reasonable and logical conclusion given the consequences from which the plaintiff suffers. I would refer to such matters as the observation of Dr Honey of the intensity with which the plaintiff expressed his belief that he had sustained a serious physical injury and the consequences thereof. It is also consistent with the various symptoms and restrictions of which the plaintiff has complained to Dr Kwong and Dr Strauss, and I would again refer to the fact that both those doctors, along with myself, accept and believe in the genuine nature of his presentation.
(c)	I am not persuaded by the opinion of the Medical Panel. As pointed out by Mr Jewell, the Panel consisted of a physician, a surgeon, and neurologist and psychiatrist. The opinion expressed is a brief and comparatively simple one, and also a collective one. As one would expect, the degree of input of each particular specialist cannot be discerned. The opinion of the Panel was, in essence, that the plaintiff was suffering from a mild chronic pain disorder but had no present inability arising from an injury to return to work in his pre-injury employment. This opinion effectively stands alone and I do not accept it. I prefer the opinion of the treating psychiatrist and of the other specialists in that area of medicine. None, including Dr Shan who examined on behalf of the defendant, expressed a view which coincides with that of the Panel. I have set out their opinions above.
(d)	As I have found that the worker’s capacity to engage in suitable employment has been completely destroyed and that this will remain the case for the foreseeable future, s.134AB(38)(g) probably has little application. In any event, I am not of the view that rehabilitation or retraining would alter the situation and I am again bearing in mind the expert opinions. In addition, bearing in mind the nature of the injury under discussion, it is not surprising that difficulties have been encountered in attempting to get the plaintiff to attend the courses that have been mentioned. Thus, I am not of the view that s.134(38)(g) operates to the detriment of the plaintiff.

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In summary, I am of the view that the plaintiff has no capacity to engage in suitable employment and that this will remain the situation for the foreseeable future. He has discharged the burden of proof in relation to leave to bring proceedings for pecuniary loss damages. Such permanent loss of earning capacity satisfies the requirements of the definition as set out in paragraph (c). As earlier stated, the parties were in agreement that, should I find that the plaintiff’s earning capacity had been destroyed, the test would be satisfied. I agree with the correctness of this.

(ii) Pain and suffering damages

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It was agreed that, should I make a finding such as that above, the plaintiff would also have discharged the burden in relation to pain and suffering damages. Such approach would be in accordance with the decision of the Court of Appeal in Advanced Wire Cable Pty Ltd & Anor v Abdulle [2009] VSCA. I appreciate that the decision in Abdulle did not concentrate upon paragraph (c) of the definition, but what has been agreed by the parties in the present case is consistent with the approach adopted by the Court of Appeal. The symptoms, pain and restrictions suffered by the plaintiff would meet the requirements of the statutory definition in any event.

Conclusion

31        The plaintiff is successful. He has discharged the burden of proof in relation to leave to bring proceedings for both pecuniary loss damages and to pain and suffering damages. I shall hear the parties as to any ancillary orders that are required.

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