Noori v VWA
[2018] VCC 321
•22 March 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-16-04802
| JAN ALI NOORI | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | DYER | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18 & 19 October 2017 | |
DATE OF JUDGMENT: | 22 March 2018 | |
CASE MAY BE CITED AS: | Noori v VWA | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 321 | |
REASONS FOR JUDGMENT
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Subject: Accident Compensation
Catchwords: Serious injury; Disentanglement
Legislation Cited: Accident Compensation Act 1985 section 134AB(37)
Cases Cited: Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626; Katanas v
TAC [2016] VSCA 140; Meadows v Lichmore Pty Ltd [2013] VSCA 201;
Malec v JC Hutton Pty Ltd (1990) 169 CLR 638
Judgment: Application dismissed
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms J. Forbes QC with Mr P. Czarnota | Henry Carus & Associates |
| For the Defendant | Mr J. Ruskin QC with Mr T. Storey | Landers |
HIS HONOUR:
Introduction
1 Jan Ali Noori is currently 29 years of age. He was born in Afghanistan and arrived in Australia as a refugee after what can fairly be described as a very difficult upbringing. Shortly after his arrival he was held in detention centres for a period of about 18 months. He suffered significant psychological issues whilst in detention and had attempted suicide.
2 In early 2012, after his release from detention and obtaining permanent residency status, he settled in South Australia and obtained work as a baker, process worker and machine operator. He continued in this work until about October 2012 when he returned briefly to Pakistan to see his ill mother and other members of his family.
3 After returning to Adelaide he struggled to find work and moved to Melbourne and obtained work through an agency with Topaz Fine Foods. He started this work in early October 2013 and described it in an affidavit as work of a factory hand and mixer. He was working five days a week and his hours varied between eight and 12 per day. He did that work only until late October 2013 when he suffered an incident when he fell awkwardly from a step ladder injuring his back. He attempted briefly to return to work, but without success.
4 He had some conservative treatment and an MRI showed what was agreed as fairly minor degenerative changes in the lower lumbar spine. He has subsequently displayed symptoms consistent with a non-organic injury resulting in an admission to the emergency department of the Dandenong Hospital in December 2014. He was later referred to a psychologist who diagnosed a major depressive disorder with significant anxiety and a post traumatic disorder. He was subsequently referred to a psychiatrist for ongoing treatment.
5 In the present application he seeks leave to claim damages for pecuniary loss and pain and suffering. He relies upon paragraphs (a) and (c) of the serious injury definition. Ms Forbes QC, who appeared with Mr Czarnota, on behalf of Mr Noori conceded that the application in respect of paragraph (c) would be the main focus of the application for leave. Insofar as reliance was placed on paragraph (a), the body function was identified as the spine.
6 I note that in order for leave to be granted Mr Noori must satisfy the court that he has suffered a permanent loss of earning capacity of not less than 40 per cent. However, his age at the date of sustaining injury enables the court to make a determination without reference to section 134AB(38)(f) of the Accident Compensation Act 1985 (“the Act”).
7 In the present case the plaintiff must establish that the quantum of that loss will be at least 40 per cent, based upon an assessment undertaken in line with authorities such as Malec v JC Hutton Pty Ltd.[1]
[1](1990) 169 CLR 638 (See also State of New South Wales v Moss (2000) NSWCA 137 at [71] and Ammerlaan v DC Roof Tiling Pty Ltd [2015] VCC 1421 at [5]
8 Mr Ruskin QC, who appeared with Mr Storey on behalf of the defendant, identified the plaintiff’s psychiatric condition as the main area of dispute. He indicated that the evidence would reveal that earlier major psychological traumas occurring in the plaintiff’s life were such that I could not conclude, for the purposes of granting leave, that the plaintiff’s current mental or behavioural disturbances or disorders could be causally linked to the initial back injury. The plaintiff’s credit, particularly in relation to histories given to doctors, was very much in dispute.
9 Mr Noori was the only witness required for cross-examination. The parties otherwise relied on material tendered from their respective court books.
The lay evidence
10 Mr Noori swore three affidavits in support of his application dated 8 June 2016, 11 August 2017 and 12 October 2017.[2] A further affidavit in support of his application was sworn by Zabi Hakimi, a friend of the plaintiff for approximately three years. Mr Hakimi was not required for cross-examination.
[2]Exhibit A, p11-23.2
11 In the plaintiff’s first affidavit he described what was clearly a difficult early life, moving from Afghanistan initially to Iran at the age of seven, and then to Pakistan when he was 10 years of age. He began working in an uncle’s restaurant in Pakistan at the age of 15 and arrived in Australia as a refugee in 2010. He deposed to being placed in four different detention centres over approximately 18 months stating:
“This period of time was very difficult as described below. I was subsequently granted a permanent refugee visa and released. I initially settled in Adelaide, South Australia.”[3]
[3]Exhibit A, p12[7] & p18[48]
12 Mr Noori started work with Topaz Fine Foods in Moorabbin in October 2013 as a factory hand and mixer. He described the duties as repetitive and routine and set them out in some detail in his affidavit.
13 He then described suffering injury to his back on 29 October 2013 when he was descending steps after scraping out a residue of mixture from a large mixing bowl. He was unable to continue work and shortly afterwards attended Dr Jabbar. He was prescribed medication and underwent a CT scan of his lower back. He tried to return to work the following day, but after experiencing what he described as severe pain in his lower back radiating into his buttocks, down his legs and into the soles of his feet, he could not cope and had to cease work.
14 According to the affidavit he then saw two other doctors, including Dr Hamimi, who prescribed further medications including Tramal, Prednisolone and Endep without great success. His sleep was also affected. He then had some physiotherapy and underwent an MRI examination in mid-December 2013.
15 Mr Noori stated that he moved to Hoppers Crossing in mid-January 2014 and came under the care of Dr Waechter, who referred him to Mr Steven Jensen, pain specialist, and Ms Chia, a physiotherapist.
16 He continued to see these doctors and a variety of medications were used without great success.
17 In August 2014 he was referred to Dr Symon McCallum, pain physician who advised him to seek a pain rehabilitation program and psychiatric treatment. He underwent a further MRI scan on his back in November 2014.
18 Mr Noori described feeling depression and anxiety and attended a hospital in Dandenong who recommended he be referred for psychological counselling. He had some personal difficulties with his accommodation and moved back to the Dandenong region where he came under the care of Dr Greg Wyatt. He was then referred to Dr Katherine McQuillan, psychiatrist, who prescribed Valdoxan medication and recommended a pain management program.
19 In July 2015 Mr Noori took an overdose of medication and was taken to St Vincents Hospital. He did not attend the initial pain management clinic and was referred to Dr Clayton Thomas, who he saw in December 2015. He was also referred to see a pain psychiatrist, but that had not eventuated when he swore his first affidavit.
20 Mr Noori’s first affidavit referred to consequences of both pain and suffering and economic loss. It is not necessary to refer to those matters at this stage.
21 Mr Noori’s second affidavit was sworn on 11 August 2017. He deposed to continuing to suffer from significant pain in his lower back and neck with the lower back the area causing him considerable concern. He had now ceased active treatment on his spine and relied on considerable amounts of medication. He had not been able to return to work and suffered from interference with his concentration and sleep.
22 He also deposed to ongoing psychological problems stating:
“I am told that I now suffer from psychological symptoms because of the ongoing pain. These psychological symptoms are different from any of those that I have ever suffered from in the past. … Although I did suffer from these types of symptoms whilst I was in detention, I found that once I left the detention I was able to function. The fact that my pain seems to have no end further impacts on my psychological state.”[4]
[4]Exhibit A, p23[15]
23 The final affidavit relied upon by Mr Noori was sworn on 12 October 2017. In that affidavit Mr Noori described the work he had done in Pakistan and the work he had done initially in the bakery in South Australia when he was freed from immigration detention.
24 Mr Noori also described the limits on his employability prior to sustaining injury due to his lack of language skills or formal education. He again referred to his difficulty in coping with ongoing pain and its impact on his emotional state.
25 When cross-examined I noted the following matters as relevant to my determination:
· He acknowledged making a statutory declaration concerning his life in Pakistan, which made references to a number of violent events in his early life.[5]
[5]Transcript (“T”) 15, Line (“L”) 20 to T 16 L 6 & Exhibit 1, p37-40
· He came to Australia in January 2010 and was taken into detention, initially at Christmas Island, and later Darwin and Curtin in Western Australia.[6]
[6]T 16, L 22 to T 17, L 17
· Mr Noori denied seeing doctors regularly whilst in detention in Darwin or Christmas Island and could not recall the document dated 28 February 2010 stating:
“I need to see the doctor I can’t sleep, when I sleep I see the bad dreams …”[7]
[7]T 18, L 17 to T 20, L 10 & Exhibit 1, p41
· Mr Noori again could not recall a medical appointment in February 2011 noting:
“Client said sleeping disturbed (with nightmares) has lost interest in interacting with friends and activities …”[8]
[8]T 20, L 11 to T 21, L 16 & Exhibit 1, p42
· He denied stating, whilst in immigration detention:
“If I get a bad report from IMR (Independent Merits Review) I will harm myself.”[9]
[9]T 21, L 21-27 & Exhibit 1, p43
· Mr Noori again denied that he had stated that he was going to commit suicide whilst in immigration detention but agreed that he was sad, and “also agitated, upset, worried.”[10]
[10]T 22, L 15 to T 23, L 4 & Exhibit 1, p44
· Mr Noori was unable to recall seeing a psychologist at the Curtin Detention Centre in February 2011 because he had stated he may harm himself.[11]
[11]T 24, L 1-14 & Exhibit 1, p46
· Mr Noori denied taking a Valium tablet in front of a doctor at the Curtin Detention Centre and did not remember stating that he was only sleeping three hours a day during the day time. He did not remember sleeping very badly in the detention centre.[12]
[12]T 27, L 10-29 & Exhibit 1, p46
· He denied becoming depressed at the Curtin Immigration Centre thinking about his visa or because other people from his boat had received visas and he did not.[13]
[13]T 28, L 7 & Exhibit 1, p46
· He denied stating to the doctor:
“If I’m rejected again, I have no choice but kill myself.”[14]
[14]T 28, L 19-30 & Exhibit 1, p47
· In March 2011 Mr Noori denied that he had been taken to the medical centre with deep cuts on each arm, but accepted that he may have had cuts to his back and his chest because of a religious matter and mourning.[15]
· After being released from detention in May 2011 he tried to study English at a TAFE in Adelaide before obtaining work for a baking company in South Australia for about eight months. He was unable to recall the dates of these events.[16]
· Mr Noori then returned to Pakistan to assist with a financial problem that had arisen in his family.[17]
· He stayed in Pakistan four to six months and witnesses some violent events, including finding the body of a friend who had been shot.[18]
· Mr Noori denied that he had suffered “very big psychological problems” whilst in the detention centre and when back in Pakistan.[19]
· Mr Noori denied having any nightmares about the refugee camp in Afghanistan when he was released from the detention centre in May 2011.[20]
· Mr Noori was ambivalent about telling a doctor in 2014 about flashbacks and nightmares concerning his experience in a refugee camp.[21]
· Mr Noori was asked some questions concerning his recent treatment for both his back injury and psychiatric condition. He agreed with the proposition that his current treating doctor, Dr Wyatt, had told him that he had a minor back injury, “a small back injury” and that it was best to go to a psychologist or a psychiatrist to try and get better.[22]
· He denied being able to attempt to return to work as he was still having difficulties with personal care and driving for more than 50 minutes.[23]
[15]T 29, L 4-24 & Exhibit 1, p48
[16]T 30, L 7-20
[17]T 30, L 24 to T 31, L 3
[18]T 31, L 7-27
[19]T 32, L 2-5
[20]T 35, L 13-20
[21]T 36, L 9 to T 37, L 27
[22]T 42, L 1-5
[23]T 42, L 18-28
26 Mr Noori had been asked some brief questions about the circumstances of injuring his back. He agreed that he had fallen from a three step ladder and landed on his feet, and that the height of the fall was a height that was a bit smaller than the height of the witness box.[24]
[24]T 34, L 6-18
27 I noted the following matters from the evidence given in re‑examination:
· Mr Noori would like to be working, but has pain in his back and tries to move as much as possible, but that makes the pain worse.[25]
· The medications given by the psychiatrist did not help, and when he described the symptoms he was told to stop taking those medications.[26]
· He stated that when he first arrived in Australia he was very happy, but when separated from his friends his attitude changed.[27]
· He agreed that he had made cuts in his arms whilst on Christmas Island:
“So I was a very religious person at the time.”
· He denied cutting himself whilst at the Curtin Detention Centre.[28]
[25]T 43, L 1-21
[26]T 43, L 24 to T 44, L 7
[27]T 44, L 20-28
[28]T 44, L 29 to T 45, L 15
28 Mr Noori relied upon an affidavit sworn by a friend, Zabi Hakimi, on 11 August 2017. Mr Hakimi was not required for cross-examination. The affidavit deposes to Mr Hakimi having known the plaintiff for approximately three years and notes the observations of Mr Hakimi apparently suffering significant pain and demonstrating limitations of activities in his day-to-day life.
29 Mr Hakimi clearly sees the plaintiff on a regular basis, and frequently provides assistance to him in day-to-day activities, including helping the plaintiff put on his shoes.
30 Mr Hakimi also deposed to observations of the plaintiff appearing angry and irritable, which he believes is due to ongoing pain in his spine and the plaintiff’s focus on his injuries.
The plaintiff’s medical evidence
31 The plaintiff relied upon material from the following treating doctors:
· Dr Steven Jensen, a consultant in musculoskeletal pain medicine, four reports between 20 March 2014 and 24 June 2014.[29]
[29]Exhibit A, p36-42
· Dr Symon McCallum, pain physician and specialist anaesthetist, twelve reports between 24 June 2014 and 21 July 2017.[30]
[30]Exhibit A, p43-56 & 88-84
· Ms Suzanne Chia, physiotherapist, one report dated 30 April 2014.[31]
· Dr Michael Waechter, general practitioner, two reports dated 6 March 2014 and 19 May 2014.[32]
· Monash Health, two reports dated 11 December 2014 and 14 July 2017.[33]
· Dr Omar Zitoun, general practitioner, one report dated 21 December 2014.[34]
· Dr Greg Wyatt, general practitioner, two reports dated 21 October 2015 and 31 July 2017.[35]
· Dr Katherine McQuillan, psychiatrist, one report dated 12 March 2015.[36]
· Dr Clayton Thomas, consultant in rehabilitation and pain medicine, five reports dated 17 December 2015 to 19 July 2017.[37]
· Mr Patrick Chan, neurosurgeon and spinal surgeon, one report dated 20 December 2016.[38]
· Dr Srirekha Vadasseri, psychiatrist, one report dated 22 March 2016.[39]
[31]Exhibit A, p57
[32]Exhibit A, p58-61
[33]Exhibit A, p62-63
[34]Exhibit A, p64
[35]Exhibit A, p65-68
[36]Exhibit A, p69-70
[37]Exhibit A, p71-79
[38]Exhibit A, p85-86
[39]Exhibit A, p87-88
32 The plaintiff also relied upon medico-legal opinions from Dr Peter Blomberry, vascular physician, Dr David Weissman, psychiatrist, Professor Peter Teddy, neurosurgeon and two occupational physicians, Dr Joseph Slesenger and Dr Leon Le Leu.
33 The opinion expressed by Dr Wyatt, the current general practitioner, is that Mr Noori has developed a chronic pain syndrome in the context of a minor back injury.
“There are no significant findings on back imaging to adequately explain his pain. This is compounded by anxiety depression. Whether these mental health issues were pre-existing or are purely due to his injury I am unable to say with certainty but as mentioned above I think both are involved.”[40]
[40]Exhibit A, p68
34 A similar view of Mr Noori’s condition was taken by Dr Symon McCallum, the pain physician and specialist anaesthetist to whom he had been initially referred in August 2014. Although Dr McCallum had not seen the plaintiff since February 2015, he reported most recently in this matter on 21 July 2017 stating:
“Mr Noori has got chronic lower back pain. This may be related to his facet joint arthropathy. There will be a muscular component. He is depressed and anxious and possibly has post traumatic stress disorder.
…
Mr Noori is greatly disabled and distressed by his pain. This is probably mainly due to his psychological status …
Mr Noori will need continued psychiatric and psychological care. I think that this is most important.”[41]
[41]Exhibit A, p83
35 The medico-legal opinions are generally in agreement with the proposition that the plaintiff has suffered a relatively minor back injury, but suffers from a psychiatric or psychological condition which greatly escalates his perceptions of pain and disability. Dr Blomberry differs expressing an opinion that 80 per cent of the current condition is due to physical injury and 20 per cent due to psychiatric consequences.[42]
[42]Exhibit A, p96
36 Professor Teddy noted no clear neurological deficit and “no obvious mechanical disruption to his lumbar spine or either clinically or on imaging.[43] Professor Teddy regarded Mr Noori’s degree of disability as being disproportionate to his objective clinical findings. He also emphasised the need for psychological assessment and presumably treatment in addressing Mr Noori’s ongoing symptomatology.
[43]Exhibit A, p128.5
37 Dr Slesenger also noted non-organic features on his examination, and found a significant psychogenic element to Mr Noori’s presentation. He stated:
“I am of the opinion that he has suffered an initial soft tissue injury to the lumbar spine and has subsequently developed chronic pain disorder. This has extended to include his thoracic and cervical spine.”[44]
[44]Exhibit A, p128.16
38 In supplementary reports Dr Slesenger made reference to the fact that Mr Noori’s belief in the physical basis of his impairment was likely to restrict his ability to enter a pain management program and in all likelihood his disability would continue into the foreseeable future.[45] Most recently his opinion was that this psychiatric aspect would also impact on his ability to return to work, or to be retrained.[46]
[45]Exhibit A, p128.21
[46]Exhibit A, p128.26
39 Dr Le Leu saw the plaintiff in March 2016 at the time he was still undergoing treatment from Dr Thomas. He stated:
“… it is still reasonable to have at least one last attempt at pain management as suggested by Dr Clayton Thomas. If there is no significant improvement with that, there is no point taking the matter any further.”[47]
[47]Exhibit A, p128.39
40 Dr Le Leu’s opinion had been sought on behalf of the insurer. He was also asked to comment as to causation in a supplementary report in April 2016. At that time he stated:
“It is my understanding that his condition commenced with the initial injury and had continued since then. In the absence of any other identifiable causes of his pain condition, it is my opinion that his condition is still materially contributed to by the initial injury.”[48]
[48]Exhibit A, p128.40
41 The opinions expressed by the consultant psychiatrist, Dr David Weissman, are quite important to the resolution of this application. Dr Weissman first examined Mr Noori on 28 April 2017. At that time Dr Weissman commented specifically on the limited history which Mr Noori had provided about his background and early life.[49] Later on Dr Weissman obtained some further limited background history and noted:
“I asked Mr Noori whether he had any psychiatric problems at all in the detention centres to which he replied no.”[50]
[49]Exhibit A, p101
[50]Exhibit A, p106
42 On that occasion Dr Weissman described Mr Noori’s case as one which was “very complex, complicated and difficult.” He also regarded his psychiatric assessment on that occasion as incomplete stating:
“As indicated on a number of occasions during today’s interview, he was evasive, guarded, withholding, or simply did not answer questions regarding his past history.
Until – if and when – Mr Noori does so, I will not be able to make a comprehensive and complete psychiatric assessment of him.
In the meantime, I cannot meaningfully comment about the existence of, or the nature, severity and extent of, any potential pre-existing and unrelated factors.”[51]
[51]Exhibit A, p110
43 Notwithstanding the qualifications in his report, he did regard employment as a possible contributor to the psychiatric condition from which he was suffering. Dr Weissman stated in conclusion:
“At this stage, Mr Noori appears to be suffering from a significant Chronic Pain Disorder/Somatic Symptom Disorder with predominant pain, as well as a moderate chronic Adjustment Disorder with depressed, anxious, and irritable/agitated mood states of moderate intensity or severity. At this stage this is at least partly contributed to by his employment. There is also some current contribution from unrelated factors. There may well be a contribution from pre-existing factors, but his history is incomplete in this regard.”[52]
[52]Exhibit A, p113
44 Dr Weissman again saw the plaintiff for re-examination in July 2017. He did obtain some further pre-injury history from Mr Noori, although he still regarded the case as a complex, complicated and difficult one. At that stage Dr Weissman had been provided with material relevant to Mr Noori’s time spent in detention centres. He went on to comment:
“Mr Noori did not acknowledge or admit to specific ‘depression’, treatment with antidepressants or incidents of deliberate self-harm whilst he was in the detention centres. This may or may not be the case, but it seems to be discrepant with material in the file. This discrepancy probably has more to do with reduced psychological and emotional insight, awareness, judgment, and understanding, cultural factors, language factors, and chronological impairment, than any possible guardedness, evasiveness or withholding.”[53]
[53]Exhibit A, p125
45 He went on to conclude that the psychiatric incapacity was in part related to the employment-related psychiatric condition and mental injuries.[54]
[54]Exhibit A, p127
46 I note for completeness that Dr Weissman provided a further supplementary report to the plaintiff’s solicitors on 11 October 2017. In that supplementary report he commented on two reports obtained on behalf of the defendant from Dr Dush Shan. Ultimately those comments are of no great relevance in my determination of Mr Noori’s application.
The defendant’s medical material
47 The defendant relied upon medical reports from Dr Dush Shan, psychiatrist, Mr Roy Carey, orthopaedic surgeon, and Dr Tony Kostos, rheumatologist.
48 Dr Shan first saw Mr Noori on 7 December 2015 and provided a detailed report to the defendant’s insurer on the same date.[55] At the time of his first report Dr Shan did not regard Mr Noori as having an identifiable psychiatric disorder that was work-related.
“He may have a pre-existing Post Traumatic Stress Disorder related to experiences in Afghanistan and Pakistan but as he did not provide relevant information to myself, I have no opinion in that regard.”[56]
[55]Exhibit 1, p3-11
[56]Exhibit 1, p8
49 Dr Shan re-examined Mr Noori on 27 July 2017. I note from his report that he had been provided with further background information, including health records relating to the plaintiff’s time in detention. Once again he provided a detailed report concluding that Mr Noori suffered a diagnosis of mild Post Traumatic Stress Disorder and personality change due to traumatic experiences outside Australia. He additionally stated:
“There is a condition of Adjustment Disorder that has arisen as a consequence of or secondary to the physical injury, but is mild.”[57]
[57]Exhibit 1, p17
50 Dr Shan also provided a supplementary report dated 27 July 2017 commenting on medical opinions expressed by a number of doctors. Of some significance were his comments directed to Dr Weissman’s opinion. He commented on Dr Weissman’s description of the matter as a “very complex complicated and difficult case” by stating:
“As far as I can see, the patient’s evasive behaviour during the examination was simply attributable to his understandable desire to focus on the present matter under litigation and emphasise all issues in relation to that. In that regard the patient’s judgment could be described as good, as he was aware of what is to his advantage and what is not.”[58]
[58]Exhibit 1, p22
51 Mr Noori was examined by Mr Carey, orthopaedic surgeon, on 15 December 2015. He prepared a report relevant to an evaluation of permanent impairment on 18 January 2016. Mr Carey’s diagnosis was as follows:
“Chronic low back pain and bilateral lower limb symptoms in the absence of radiculopathy now with the most prominent presentation being a chronic pain syndrome or disorder.”[59]
[59]Exhibit 1, p28
52 He regarded the condition as one which was likely to produce continued discomfort and disability into the foreseeable future. He further commented:
“My impairment assessment as above does not indicate that this man has no physical problem, but just that the physical presentation is markedly overshadowed by the non-organic signs of abnormal illness behaviour as outlined above, and there were no radiological findings of actual ‘injury’ on the reports provided.”[60]
[60]Exhibit 1, p29
53 The final report relied upon by the defendant was from Dr Tony Kostos, rheumatologist, who examined Mr Noori on 22 June 2017 and prepared a report dated 4 July 2017.[61]
[61]Exhibit 1, p31-35
54 Dr Kostos’ opinion was as follows:
“For want of a better term, the worker may have sustained a sprain or strain to his lumbar spine as a result of the incident on 29/10/2013, but this has since resolved.
He now has a chronic pain syndrome.”[62]
[62]Exhibit 1, p33
55 He went on to comment that Mr Noori’s current condition was no longer related to the injury sustained in 2013, but nevertheless Mr Noori had no capacity for employment as a result of non-physical factors:
“His entire presentation was consistent with non-organic findings and this was evidence from his observed activities during the interview and was only confirmed by my examination findings.”[63]
[63]Exhibit 1, p34
Analysis
56 The medical evidence in this case provides only limited assistance, largely due to an absence of clear pathology to demonstrate organic injury producing symptoms in the plaintiff’s spine sufficient to justify the ongoing levels of pain and loss of function as claimed by Mr Noori. Any clinical diagnosis of the organic injury is also complicated by the presence of an obviously significant non‑organic symptom complex.
57 Mr Noori is a young man and, absent clinical or radiological evidence underpinning medical opinions, it is difficult to conclude that there has been a demonstrable need for the levels of pain killing medications ingested by him, and indeed the restriction of his physical activities to the extent claimed, without a very significant contribution from non-organic factors.
58 This is not a case where I am led to conclude that Mr Noori has consciously exaggerated the level of symptoms, or attempted to mislead the court in terms of the level of suffering experienced by him.
59 Nevertheless the disparity between the plaintiff’s pre-injury history set out in his affidavits and the matters raised with him in cross-examination concerning particularly his time in immigration detention, cause me great difficulty in regarding the plaintiff as a reliable witness, especially in terms of his pre‑existing psychological state.
60 In final address Ms Forbes QC urged me to approach this case on the basis that the organic injury triggered a pre-existing but latent psychological condition which has now produced ongoing severe consequences for Mr Noori. I was referred to a longstanding workers compensation authority of Federal Broom Co Pty Ltd v Semlitch.[64] In that case the High Court considered the relationship between a minor organic back injury and the subsequent development of severe symptoms of a longstanding but largely latent schizophrenia affecting the injured worker. In that case it was stated:
“The respondent had a previous history of schizophrenia which predisposed her to delusions, and she had had delusions of different kinds before. But the incident of the tea chest was a contributing factor to the arising of a new delusion. This was a delusion that she continued to be seriously affected in a way which made it impossible for her to work by reason of abdominal pain.
The award she sought was made, and there is no dispute now that it was rightly made if the proper conclusion on examination of the evidence is that there was sufficient evidence to support a finding that the bringing about of the new delusion, which admittedly incapacitated the respondent for work, constituted an ‘injury’ within the meaning of the word as defined in s.6 of the Workers’ Compensation Act, 1926-1960 (NSW).”[65]
[64](1964) 110 CLR 626
[65]Per Kitto J at p631
61 Ultimately the court agreed with this approach stating:
“Where it is possible to identify as a contributing factor to the aggravation, acceleration, exacerbation or deterioration of a disease some incident or state of affairs to which the worker was exposed in the performance of his duties and to which he would not otherwise have been exposed, I see no misuse of English in condensing the statement of the fact by saying simply that the employment was a contributing factor to the aggravation etc.”[66]
[66]Per Kitto J at p633
62 Whilst such an approach is essentially valid, it ultimately depends upon whether the plaintiff has discharged the onus of demonstrating that the present non‑organic symptoms from which he suffers can properly be characterised as consequences of the original back injury suffered in 2013.
63 In this regard Ms Forbes QC referred me to the earlier period of employment in South Australia which she submitted was demonstrative of the fact that Mr Noori had a capacity for employment, and indeed had exercised that capacity until he needed to return to Pakistan for personal reasons. It was further submitted that he retained that capacity until the incident in November 2013 which ultimately produced the ongoing serious and disabling psychological condition which has effectively permanently precluded the plaintiff from any form of suitable employment.
64 I accept the incident of 2013 has been a cause of some of the plaintiff’s ongoing non-organic symptoms, but I have difficulty in disentangling those work-related symptoms from the totality of the plaintiff’s ongoing condition.
65 Ms Forbes QC also referred me to Katanas v Transport Accident Commission[67] as authority for the proposition that a non-organic condition could satisfy the relevant test in that case of a severe long-term mental or severe long-term behavioural disturbance or disorder notwithstanding the absence of extensive psychiatric treatment or medication. I accept that as a valid proposition applicable in the present case.
[67][2016] VSCA 140
66 I have little doubt that Mr Noori firmly believes his symptom complex is due to what he repeatedly described as two damaged discs in his spine. The preponderance of medical evidence does not support such a relationship, and strongly suggests that the symptom complex experienced by him is very largely non-organic in nature.
67 The essential difficulty facing the plaintiff in the present case is to satisfy me that the non-organic consequences which are presently central to his ongoing incapacity can properly be characterised as consequences of the work-related back injury suffered in November 2013.
68 The approach urged upon my by Mr Ruskin QC was consistent with approach taken by the Court of Appeal in Meadows v Lichmore Pty Ltd.[68] The court in Meadows set out a two-step approach:
“The first step to ask is whether there is a substantial organic basis for the pain and suffering consequences relied on. If the answer to that question is affirmative – and, of course, if the pain and suffering consequences satisfy the statutory criterion – then the applicant will succeed without the need for any ‘disentangling’ of the physical contributions to the pain and suffering from the psychological contributions.
If, however, that first question is not – or cannot be – answered affirmatively, then the applicant will need to take the next step and ‘disentangle’. That is, the applicant will need to be able to separate the physical contribution to the pain and suffering from the psychological, in order to be able to satisfy the Court that the pain and suffering consequences attributable to the physical injury satisfy the statutory test.”[69]
[68][2013] VSCA 201
[69]Meadows v Lichmore Pty Ltd at [21] to [22]
69 Although the present case is one which claims an entitlement for leave for pecuniary loss in addition to pain and suffering, I take the view that the approach dictated by the Court of Appeal in Meadows is the appropriate test to be applied in the present case.
70 The very significant omissions of the plaintiff’s pre-injury psychological condition have impacted upon his general reliability as a witness. Additionally, his own strongly held belief that the genesis of his pain has an organic basis is one that has led to some degree of conflict between the medical practitioners relied upon in his case. I am nevertheless satisfied that the symptom complex is predominantly non-organic in origin.
71 I am satisfied that the totality of the plaintiff’s present non-organic symptom complex is sufficient to satisfy the statutory threshold of “permanent severe mental or permanent severe behavioural disturbance or disorder.” Notwithstanding such a finding, I cannot be satisfied that such consequences can be fairly described as being consequences arising from the original work‑related spinal injury so as to satisfy the statutory threshold for “serious injury”.
72 The unreliability of the plaintiff as a historian makes it extremely difficult for me to accept the proposition urged upon me by Ms Forbes QC that I should accept that his seven months employment in South Australia following his release from immigration detention was sufficient evidence for me to conclude that his psychological state at that time was such that he had both an unrestricted working capacity and a similar capacity for non-employment activities.
73 Although the current body of evidence could be assessed in such a manner, it ultimately requires a court to place a degree of confidence in the primary evidence given in this case by Mr Noori.
74 Frankly the plaintiff’s omissions of details of significant material in his initial affidavit, and his ongoing reluctance to accept matters put to him in cross-examination by Mr Ruskin QC, have damaged his reliability to such an extent that I am not prepared to apply the analysis proposed by Ms Forbes absent further corroborative material either from a treating medical practitioner or at least some lay evidence as to the plaintiff’s capacity at that time.
75 Ultimately the plaintiff bears the onus of proving his entitlement for leave. I am not satisfied that he has done so in the present application. My concerns about the reliability of the plaintiff in relation to the genesis of his non‑organic symptomatology must undoubtedly impact on any application for pain and suffering in addition to one seeking leave for pecuniary loss damages.
Conclusion
76 The plaintiff’s application will be dismissed. I will hear the parties further in relation to the formal orders and questions of costs.
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