Petrovski v Australian Cables Pty Ltd
[2009] VCC 641
•3 June 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES & COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-06-04103
| NIKOLCE PETROVSKI | Plaintiff |
| v | |
| AUSTRALIAN CABLES PTY LTD | Defendant |
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| JUDGE: | HIS HONOUR JUDGE O'NEILL |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 14, 15, 18 and 19 May 2009 |
| DATE OF JUDGMENT: | 3 June 2009 |
| CASE MAY BE CITED AS: | Petrovski v Australian Cables Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 0641 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – serious injury application – s.134AB Accident Compensation Act 1985 – injury to lower spine – credibility of the plaintiff – extent of seriousness – disentangling – work capacity.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr G A Lewis SC with | Patrick Robinson & Co. |
| Mr R C Forsyth | ||
| For the Defendant | Mr J R Moore QC with | Wisewoulds |
| Mr T J Ryan | ||
| HIS HONOUR: |
Preliminary
1 The plaintiff suffered injury to his lower spine after lifting a heavy spool in the course of his employment on 26 June 2001. Subsequent radiology showed disc protrusions at L4-5 and L5-S1 in the lumbar spine. He remained on lighter duties with the defendant until December 2002 when his employment was terminated. He has not worked from that time to the present.
2 In addition, he alleges he has suffered and continues to suffer a significant psychiatric disorder in the nature of an adjustment disorder or major depressive illness.
3 This is an application for leave to bring proceedings pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered in the course of the plaintiff’s employment on 26 June 2001.
4 Mr Lewis, on behalf of the plaintiff, identified the body function said to be lost or impaired as the lower spine. In addition, he stated the plaintiff had suffered a permanent severe mental or permanent severe behavioural disturbance or disorder. The application is thus brought under sub-sections (a) and (c) of the definition of “serious injury” contained in s.134AB(37) of the Act and leave is sought in respect of both pain and suffering and loss of earning capacity.
5 In order to succeed, the plaintiff must prove, the onus being upon him, that the consequences emanating from the loss or impairment of the spine are at least “very considerable” and more than “significant” or “marked”. In the alternative, the plaintiff must prove that the consequences emanating from the disturbance or disorder may fairly be described as more than “serious” to the extent of being “severe”. The authorities have defined the word “severe” as being a word of stronger force than “serious”. I must consider the consequences to this particular plaintiff, viewed objectively, arising from injury. I must also compare the impairment arising from injury in this application with other cases in the range of possible impairments or losses of the body function of the spine, alternatively, of mental or behavioural disturbances or disorders.
6 Further, in order to be satisfied that the plaintiff has suffered a loss of earning capacity, he must prove, as required by s.134AB(38)(e)(i) and s.134AB(38)(f) of the Act, that, as a result of injury, he has suffered a loss of earning capacity of 40 per cent or more when a comparison is made between his “without injury” earnings in the three-year period before and after injury as best reflects his earning capacity, with his earning capacity at the present time from suitable employment.
7 The plaintiff was the only witness called to be cross-examined. In addition, medical reports, radiological investigations, affidavits of the plaintiff and his wife, various extracts from clinical notes, rehabilitation material, reports of rehabilitation experts and various financial documents were tendered into evidence. I have read all the tendered material.
8 On behalf of the defendant, Mr Moore outlined the position of his client in response to the application as:
•
The plaintiff had suffered a musculoligamentous injury in the subject incident, and that this injury had resolved.
•
There was an issue as to the seriousness of the consequences which the plaintiff claimed.
• The plaintiff’s presentation was not a true reflection of his incapacity. •
The plaintiff’s credit would be challenged, particularly his capacity to drive to and work upon properties he owned at Lake Boga and French Island.
•
Part at least of the plaintiff’s presentation was functional and there was not remaining any serious organic injury.
•
The plaintiff had the capacity for work and did not achieve the 40 per cent threshold in respect of economic loss.
•
The onus was upon the plaintiff to prove he had made reasonable attempts at rehabilitation and retraining, and he had made no sufficient efforts in that regard.
Relevant Background
9 The plaintiff is currently forty-three, having been born on 29 November 1965. He is married with three dependent children.
10 He came to Australia from Macedonia at a young age with his family and completed Year 12 in New South Wales. He moved to Melbourne at age twenty and had various manual jobs in cabinetmaking, machine operation and process work. He commenced with the defendant in 1998 and was made permanent in 1999. He worked as a machine operator/forklift driver.
11 Prior to the injury the subject of this application, the plaintiff was generally in good health. There is reference in the clinical notes of his then treating general practitioner, Dr Wells,[1] to a back strain in 1995 which required a brief period of medical treatment, including the prescription of pain-relieving and other medication, and some attendances upon a physiotherapist, but the plaintiff recovered from this episode and was able to continue working in manual employment without restriction thereafter. There is a brief reference to back pain in 1999, but again this is of little significance.[2]
[1] Defendant’s Court Book (“DCB”) 112; 116
[2] DCB 116
12 It was put to the plaintiff, that prior to the subject incident in June 2001, blood tests indicated the plaintiff suffered macrocytosis.[3] Further, a pathology report of 3 June 2001[4] indicated the plaintiff tested positive to Hepatitis A and Hepatitis B. The plaintiff denied any knowledge of these conditions and even if he was diagnosed, there is no medical evidence to suggest these would have, absent the relevant injury, restricted his activities of daily living or work capacity.
[3] DCB 118
[4] Exhibit 4
13 Shortly prior to the incident, the plaintiff had purchased a property at French Island which he intended to use as a holiday house. Settlement took place two days prior to injury.
14 In addition, in the 1990s he inherited a 9.2 hectare property at Lake Boga, Victoria, and in the Year 2000, he planted approximately 2000 olive trees with the intention of that becoming a commercial enterprise. In fact he registered several business names for that purpose.
15 Despite achieving Year 12 at school, the plaintiff has worked essentially in manual employment, including work as a cleaner, machine operator, general hand, forklift driver and for the defendant from 1998 in various duties, including forklift driving, crane operation and general manual activities. He has neither background nor experience in clerical, computer or office work.
16 While there is no specific reference in his affidavits to the social and recreational activities he enjoyed before 2001, he was described by his wife[5] as an energetic, happy and active person who enjoyed work on the farm at Lake Boga and his involvement with family activities.
[5] Plaintiff’s Court Book (“PCB”) 16
The Injury and its Consequences
17 On 26 June 2001, the plaintiff was working an evening shift and in the course of his employment was required to move a heavy spool weighing an estimated 50 kilograms within the work area. He states he felt severe pain in his back[6] and referred pain into his left leg. Shortly thereafter he also developed pain in his stomach and groin area. This was subsequently diagnosed as left and right inguinal hernias. These were surgically repaired in 2003 and 2004. It would appear that the surgery was effective.
[6] PCB 8-9
18 After the injury the plaintiff remained at work but then rested at home over the next several days on rostered days off. He initially consulted Dr Chan, to whom he was referred by his employer.[7] He saw Dr Chan on 29 June 2001[8] and was diagnosed as having suffered a mid to lower back musculo- ligamentous and discogenic injury with nerve root symptoms. Voltaren was prescribed and the plaintiff was referred for CT examination. That examination, of 2 July 2001,[9] showed small broad-based disc protrusions at L4-5 and L5-S1 without neural compromise. Dr Chan referred the plaintiff to Mr Michael Johnson, orthopaedic surgeon, on 2 July, although there is no report from Mr Johnson. Dr Chan certified the plaintiff as fit for light duties.
[7] See Incident Reports, DCB 245-247
[8] DCB 99
[9] PCB 134
19 In July 2001, the plaintiff consulted Dr Towie, a general practitioner, of Broadmeadows and Epping. Generally from that time he has been treated by Dr Towie, although I note that doctor tragically died in the February 2009 bushfires.
20 The plaintiff continued at work with the defendant, initially working 6 hours per day on light duties and by December 2002, had built up his hours and was working 10 hours per shift, still on lighter duties.[10] His employment was terminated in December 2002 on the basis that there was not work available to him because of his restrictions. There was at this time considerable acrimony between the plaintiff and his employer, and according to the reports of Dr Towie[11]and a treating psychiatrist,[12] both of whom had visited the workplace, there was clear hostility by the employer to him. In any event, his employment was terminated and he has not worked from that time to the present.
[10] See report of Mr Jones, DCB 83
[11] PCB 120
[12] PCB 71
21 Because of a developing psychological reaction to the pain he was suffering, Dr Towie referred the plaintiff to Dr Rigby, psychiatrist, in October 2001. He remained receiving treatment from that doctor until 2004. Dr Towie thereafter referred the plaintiff for psychological treatment with Mr Jontof-Hutter, psychologist, in 2005.[13]
[13] PCB 43-44
22 Apart from the prescription of anti-depressant medication by his general practitioner, he is not currently receiving any psychiatric nor psychological treatment.
23 The plaintiff was seen over the period from late 2001 to 2003 by Mr Haw, orthopaedic surgeon, and again in 2007.[14] Mr Haw considered spinal surgery, subject to findings on discography. The plaintiff was reluctant to undergo such surgery, and his treatment from that time on has essentially been conservative. There is no suggestion at the present time either from treating or consultant practitioners that the plaintiff ought undergo any form of surgery.
[14] PCB 41
24 In April 2003, the plaintiff was referred by Dr Towie to Mr Brendan O’Brien, neurosurgeon, for further opinion. Mr O’Brien recommended against surgery. He continued to review the plaintiff until mid 2004, and then again in 2007 until April 2008. Mr O’Brien referred the plaintiff for radiology, particularly MRI scans, and reviewed all of the scans.[15] The various CT and MRI scans up to and including an MRI scan of May 2007 showed disc protrusions at L4-5 and L5-S1. The MRI scan of March 2004[16] showed the appearance at the two lower lumbar levels was essentially stable. The final MRI scan of May 2007[17] noted the protrusion at L4-5 indented the thecal sac and contacted the exiting L5 nerve root without entrapment. At L5-S1 the disc protrusion contacted the nerve root sheath of the left S1 nerve root.
[15] PCB 134-143a
[16] PCB 143
[17] PCB 143a
25 Mr O’Brien referred the plaintiff for a formal rehabilitation program at the Dorset Rehabilitation Unit with Dr Clayton Thomas in September 2007. From that time until March 2008, the plaintiff participated in a rehabilitation and pain management program and it was recommended that he attempt to reduce weight and undertake an exercise regime.[18] The plaintiff said that the program did not provide him with any particular assistance, although it was noted[19] that he struggled to understand the concepts of pain management, and avoidance activity.
[18] PCB 105
[19] PCB 111
26 As stated, the plaintiff has not worked since December 2002. In evidence, he stated that he had attempted to return to work with a variety of employers, including in the areas of:
ƒ car upholstery ƒ working with containers at premises at Campbellfield ƒ in a printer cartridge business ƒ with TNT at Thomastown. 27 These attempts were rejected, and the plaintiff never obtained employment. He says of more recent times that he has become depressed and lost the will and nerve to apply for further employment. He has been in receipt of the Invalid Pension since 2004.
28 From the time of the incident to the present time, the plaintiff claims that he suffers significant pain in his lumbar region, with referred pain into the left buttock and groin. From time to time he has pain radiating into the left thigh and calf and occasionally to the left foot. He says that his pain becomes severe when he has increased activity, particularly after standing for any period. He claims a range of recreational and domestic activities have been curtailed or lost to him. He could not play social football or cricket, and was not able to maintain his olive farm and had to rely upon the assistance of his brother-in-law and other family members.[20] He is able to walk, albeit at a slower pace, and that as a result of his pain he says that his relations with his family have become strained.
[20] PCB 37
29 At the present time his treatment is conservative and consists of seeing his general practitioner, until recently Dr Towie, once or twice a month. He is now treated by a general practitioner, Dr Miller, and currently is prescribed Panadeine Forte, Tramal and Valium for back pain, and purchases Panadol over the counter. He is further prescribed Luvox, an anti-depressant. Sometimes he takes the medication on a daily basis, and sometimes not for several weeks.[21] He stated that on a bad day his pain levels in the back were 8 out of 10, and on a good day 3 to 4 out of 10. In the past, the plaintiff has had physiotherapy and hydrotherapy. He has also had extensive chiropractic treatment and currently sees the chiropractor once a month or so.
[21] T 44
30 For the year ended June 2001, the plaintiff earned $45,500 gross from his employment with the defendant.
Medical Opinions – Physical Injury
31 Dr Towie provided a range of medical reports.[22] In his report of July 2004, he noted at that time the plaintiff had no work capacity. He said that the plaintiff was not suited for any employment involving lifting, bending, prolonged sitting or standing. He thought there was limited prospect of improvement. He also thought that the plaintiff’s depressive illness and mental state proved a major obstacle to employment and that, compounded by his treatment at work, was likely to take a considerable period to resolve. He considered that the psychological state would prove difficult for the plaintiff to re-train into a new area.
[22] PCB 112-131
32 In a final report which appears to have been prepared in 2006,[23] Dr Towie thought the plaintiff could work up to four hours a day on at least three days a week provided the work did not involve heavy lifting, bending and the like.
[23] PCB 125-131
33 The only report from the initial treating practitioner, Dr Chan, is a referral letter to Mr Michael Johnson of 2 July 2001.[24] That report describes the early findings and the treatment by Dr Chan.
[24] PCB 20
34 Mr Haw, the treating orthopaedic specialist, provided a number of reports.[25] He initially considered that the plaintiff had suffered damage to the lower lumbar discs, and considered that the L5-S1 disc was likely to be symptomatic. He thought the pain was discogenic in origin.[26] In February 2002, in a letter to his general practitioner, Mr Haw described the plaintiff as “having a terrible time with his lower back”. He noted the radiological investigations confirmed degeneration at L4-5 and L5-S1 without nerve root impingement and thought it likely the plaintiff had injured his back in the described incident. This in turn had caused a disruption at the L5-S1 disc with bulging and an incomplete prolapse.[27]
[25] PCB 31-42
[26] PCB 32
[27] PCB 35
35 By July 2007, Mr Haw noted that:
“There appeared to be a lot of overlay complicating the clinical picture.”
36 Nonetheless, he considered the plaintiff was still experiencing pain as a result of disruption at the L5-S1 disc which was, to some extent, being exaggerated. He suggested discography be undertaken before surgery be seriously considered. He thought the plaintiff would continue to suffer intermittent low- back pain which would require analgesia and that it was reasonable that the plaintiff ought not to return to work of a physical nature.[28]
[28] PCB 42
37 In a comprehensive report of October 2008,[29] Mr Brendan O’Brien, neurosurgeon, considered that the plaintiff was suffering chronic discogenic lumbar pain and with intermittent irritation of the left L5 nerve root. He noted a markedly reduced range of movement of the lumbar spine although there was no specific evidence of radiculopathy. He noted sensory disturbance in the posterior aspect of the right thigh and that the MRI scan of August 2007 demonstrated two-level lumbar disc desiccation at L4-5 and L5-S1. Mr O’Brien noted the plaintiff had gained approximately 20 kilograms in weight. He recommended against any surgical intervention and said there were some aspects of his clinical examination which were functional. He considered the prognosis guarded and opined that the plaintiff had suffered an exacerbation of pre-existing lumbar spondylosis at L4-5 and L5-S1 from the work event. He thought the plaintiff was partially restricted in his ability to undertake daily activities and that the plaintiff had a limited work capacity. He suggested (in October 2008) that if the plaintiff were to return to work, it ought be done on a gradually increasing basis starting at 25 per cent of his previous working hours. He was uncertain whether the plaintiff would eventually return to full- time employment and thought that appropriate duties would be of an office nature where there was no recurrent bending, twisting or straining and with a restriction on lifting anything greater than 10 kilograms.
[29] PCB 61a-61e
38 The plaintiff was examined by Mr Chamberlain, orthopaedic surgeon, in November 2004.[30] He considered the plaintiff had suffered a lumbar disc strain with a small prolapse evidenced on radiology.
This report is not particularly helpful and appears to have been obtained for an AMA assessment.[30] PCB 17-18
39 Mr David Brownbill, consultant neurosurgeon, examined the plaintiff in September 2007 and August 2008.[31]
[31] PCB 21-30
40 On each occasion he noted there were various non-organic responses to clinical examination and he considered the plaintiff had longstanding asymptomatic lumbar spine degenerative changes which were made symptomatic in the incident of June 2001. That incident aggravated the underlying changes and was likely to have contributed to intervertebral disc derangement. He considered the plaintiff should avoid heavier lifting, forced spinal mobility, repeated bending and prolonged standing or sitting. He thought the plaintiff, given his age and experience, would have difficulty obtaining employment for which he was suited. He considered surgery may be appropriate but the outcome could not be predicted. Setting aside psychiatric responses and functional overlay, the impact of the physical injury would affect the plaintiff’s daily activities, enjoyment of life and work capacity. In the course of the various examinations, he noted there was no neurological abnormality and no signs of radiculopathy.
41 The plaintiff was examined by Mr Peter Mangos, general surgeon, in June 2004.[32] He considered the plaintiff had suffered lumbar intervertebral disc damage mainly at L5-S1 with left-sided sciatica, in the work incident. He considered the plaintiff had made little progress from 2001 to 2004 and that the prognosis was bleak. He said the plaintiff could certainly not return to any form of heavy work and that he was totally incapacitated for work for which he was trained, educated and experienced. The intervertebral disc damage was, he said, a rupture at L5-S1 and a protrusion at L4-5 with left-sided sciatica. He thought the impact upon the plaintiff’s work capacity was total and permanent.
[32] PCB 77-81
42 The plaintiff was examined by Mr Rodney Simm, orthopaedic surgeon, on three occasions in 2007, 2008 and 2009.[33] I found the reports of Mr Simm comprehensive and helpful. He received a history from the plaintiff that he was able to remain seated for two hours at a time but that he had problems driving his car. The plaintiff said he was able to walk for 2 kilometres but had to stop and rest regularly. Further, the plaintiff said that he visited the olive grove at Lake Boga each two to three months but was unable to do any work there. He inspected the MRI scans, and in relation to the scan of May 2007, he noted moderately advanced disc degeneration at L4-5 and L5-S1 with disc bulging at both levels. He noted at L5-S1 the disc bulge had left-sided features contacting the region of the existing S1 nerve root, but without nerve compression. He considered there was an annular fissure at L4-5.
[33] PCB 97-102h
43 He said the plaintiff was suffering a disabling low-back pain and referred pain to the lower limbs, particularly to the left side as a result of the unresolved aggravation of the L4-5 and L5-S1 disc degeneration. He thought that the symptoms were related to the lift at work in June 2001. The severe pain which followed the incident, he said, was consistent with an annular disc disruption in one or both of the degenerate lower lumbar discs and the incident had contributed to some degree to the annular protrusions. The pain into particularly the left ankle was rather non-specific and there was the possibility of nerve root irritation at S1, consistent with the MRI changes. He noted the plaintiff to be a depressed man with pain focus. He expected the plaintiff’s condition to be ongoing given there had been no significant improvement over the period during which he examined the plaintiff. Management of his condition would be self-regulated and the plaintiff would be confined to light occupational and recreation activities. He noted the impact of the injury was such as to restrict the plaintiff’s physical activities and that this would be permanent. He noted the plaintiff had neither work experience nor occupational qualifications in non-physical forms of employment, even although he had completed Year 12 at school. The plaintiff’s work experience was confined to unskilled work as a labourer, process worker and supervisor. He thought the plaintiff would need vocational guidance and possible retraining. The injury, he said, had greatly reduced the plaintiff’s enjoyment of life and led him to be unable to maintain the olive grove.
44 Dr Clayton Thomas, specialist in rehabilitation and pain medicine, reported following the plaintiff’s attendance at the Dorset Rehabilitation Centre[34]. Upon examination, he noted there were a number of non-organic signs and that emotional factors were clearly playing a significant role. This had the effect of magnifying the plaintiff’s pain and disability. He considered that while the plaintiff had a work capacity from an organic point of view, from an holistic point of view, there was no work capacity as at 2007. After the program, Dr Thomas considered the plaintiff’s overall condition was worsening and that the persistent pain was arising from one or other of the lower discs in the spine.
[34] PCB 103-111
45 Mr Neil Wise, physiotherapist, reported in November 2003.[35] That report outlined Mr Wise’s treatment and examination in 2002 and 2003.
[35] PCB 133a-133d
46 On behalf of the defendant, the plaintiff was examined by Mr Michael Polke, orthopaedic surgeon, on a number of occasions between August 2001 and May 2004.[36] Initially, Mr Polke considered the plaintiff’s disability was not permanent and that he should make a recovery. He noted that radiology showed bulging at the two lower discs without frank protrusion. In November 2003, Mr Polke considered the plaintiff had the capacity to work in a range of occupations,[37] which included as a gardener’s assistant, farm hand - undertaking light duties, process worker or console operator, light packaging work, cleaning - providing the duties were lighter, delivery driver, taxi or limousine driver, or store person involved in light duties. In his final report,[38] he concluded the plaintiff was suffering low-back pain with sciatica due to degenerative changes at the lower discs, and lateral canal stenosis. He considered that the heavy lift in June 2001 had disrupted the two lower discs. He said the plaintiff should not undergo spinal surgery and that he was unable to resume his previous employment, but could undertake employment provided he did not lift more than 5 kilograms or undertake a repeated bending nor twisting of the spine.
[36] DCB 1-20
[37] DCB 17
[38] DCB 20
47 Dr David Barton, occupational physician, examined the plaintiff in December 2001, August 2003 and June 2004.[39] He considered the radiological changes as minor only, and clearly longstanding. He thought there were a number of aspects of clinical examination which showed the plaintiff was exaggerating his symptoms, including non-anatomical sensory changes in both legs with weakness, complaint of pain on axial loading, exquisite tenderness over areas of the back and lack of any underlying pathology for dramatic symptoms. He thought the plaintiff had some mild, physical work-related problem but that this had been complicated by the development of functional overlay. The functional features, he thought, indicated deliberate exaggeration. He did not believe that the plaintiff had any incapacity as a result of the injury and he could undertake normal work.
[39] DCB 21-35
48 Dr Barton’s views are at the extreme range of opinions and are not shared by any other practitioner, save for Mr Blue. Effectively he considers the plaintiff has no incapacity as a result of injury and that the radiological changes are minor degenerative changes only. Given this, I reject his opinions.
49 In December 2001, for an independent insurer, the plaintiff was seen by Mr Anthony Blue[40], orthopaedic specialist. As with Dr Barton, he found many inappropriate clinical signs. He thought there had been some temporary aggravation of the pre-existing degenerative changes at the two lower disc levels but that that aggravation had lasted no more than six or eight weeks. The plaintiff, he said, was suitable to return to full-time duties, although avoiding lifting, bending, and the heavier aspects at least for the first several months. Again, I do not find Mr Blue’s opinion of assistance, and it is now significantly outdated.
[40] DCB 36-39
50 The plaintiff was examined by Mr Anthony Buzzard, general surgeon, in December 2003.[41] He considered that the plaintiff’s lower back pain was discogenic in origin and that there was the possibility of left-sided sciatica, although not supported by radiological nor clinical examination. He thought there was a significant functional component to the presentation. He considered that it was reasonable the plaintiff would not return to work in a job involving heavy lifting, bending or stooping. He thought the clinical situation somewhat complex because of the interrelationship of physiological and psychiatric problems.
[41] DCB 54-61
51 The defendant had the plaintiff examined by Mr Clive Jones, orthopaedic surgeon, in August 2006 and September 2008.[42] Mr Jones considered there was evidence of overreactivity to clinical examination with abnormal illness behaviour. He accepted that there was underlying abnormality due to age- related degenerative change in the lower lumbar discs, but without neural compression. He did not think that this alone accounted for the severity of the plaintiff’s symptoms. He suggested the defendant undertake surveillance. He considered the functional aspect of the presentation as significant. He considered this was represented as a considerable exaggeration. He thought the plaintiff could return to normal physical duties, avoiding extremely heavy employment. He considered that the aggravation relating to employment in June 2001 had disappeared many years ago.
[42] DCB 76-81
52 Finally, the plaintiff was examined by Mr Ian Jones, orthopaedic surgeon, in April 2009.[43] In the history to Mr Jones he complained of constant low-back pain aggravated by twisting, bending and driving over bumps. He said he was able to walk several kilometres and could stand for several hours. He admitted to travelling to the olive grove six or seven times per year, although his capacity in driving was limited to 30 minutes. There was a significant reduction in spinal movement upon examination. He considered that as a result of the injury of June 2001 that there had been an aggravation of the plaintiff’s degenerative disc disease at the two lower lumbar levels manifesting in pain in the spine with referred pain to the left thigh. He noted disc protrusion at L4-5. He considered the plaintiff was depressed, and that based solely upon his physical symptoms, he would be fit only for light physical employment without heavy lifting or bending.
[43] DCB 82-86
Conclusions as to the Physical Medical Evidence
53 I reject the opinions of Dr Barton and Mr Blue. They are at the extreme end of the range, and contemplate that the plaintiff suffered no significant injury and that he is consciously exaggerating.
54 The opinions of Messrs Haw and O’Brien are authoritative given they treated the plaintiff over a considerable period. Each considers the plaintiff suffered an underlying degenerative disease at L4-5 and L5-S1 and that this was aggravated in the incident of June 2001. While there is no surgical intervention now contemplated, each accepts that the plaintiff suffered significant pain with referred pain to particularly the left leg, although without radiculopathy. Mr O’Brien accepts that the plaintiff has some light work capacity but with significant restrictions, and with the prospect of commencing on a part-time basis.
55 I found the opinion of Mr Simm comprehensive and impressive. He has seen the plaintiff regularly over recent years and while acknowledging that there has been an emotional reaction as a component of the plaintiff’s pain, he considered the pain as severe and persistent. He considered that there was a nerve root irritation at L5-S1, but without objective radiculopathy. Practically, he considered the plaintiff had no work capacity.
56 As stated, I accept that there is a functional element involved in the plaintiff’s presentation. This is referred to by the treating practitioners, particularly Dr Clayton Thomas. To that extent, there is a disentangling exercise in determining to what extent the consequences which the plaintiff complains, have arisen as a result of injury, have a physiological rather than functional basis.
57 The opinions of Mr O’Brien and Mr Simm are supported by that of Mr Ian Jones, who saw the plaintiff on behalf of the defendant. He considered that the plaintiff was fit for light physical duties only.
Medical Evidence – Psychological Injury
58 The plaintiff was treated by Dr Rigby, apparently a physician in psychiatrist, in 2001 and 2002. He considered the plaintiff was suffering a major depressive disorder[44] as a result of the severe pain which the plaintiff had suffered arising from injury. He also considered the plaintiff had paranoid and anxiety symptoms. In considering the opinions of some doctors who had reported the plaintiff’s presentation as contrived and exaggerated, he considered such findings unfair and inappropriate and due to the plaintiff’s significantly depressed state. In fact, he said:
“According to my own extensive experience in orthopaedic surgery prior to commencing psychiatric training and practice, there was nothing in Mr Petrovski’s presentation to justify any conclusion of exaggeration of symptoms.”[45]
[44] PCB 71
[45] PCB 73
59 This is a somewhat extraordinary finding given Dr Rigby was not present at the examination by other practitioners.
60 The major depressive disorder was, according to Dr Rigby, of considerable severity and that the genuineness and seriousness of the illness was misunderstood, particularly by the employer. He considered the prognosis for recovery and further employability as poor.
61 The plaintiff was also treated by Mr Jontof-Hutter, psychologist. He considered the plaintiff suffered a chronic adjustment disorder with depressed mood.
62 Dr Nathar, psychiatrist, examined the plaintiff in September 2007 and September 2008.[46] He considered the plaintiff was suffering a moderate to severe chronic adjustment disorder with depressed mood, just about at the level of criteria for a major depressive reaction. He noted the plaintiff has taking Luvox, anti-depressant medication, which he thought ought continue indefinitely, and that his prognosis was poor. From a psychiatric point of view alone, Dr Nathar considered the plaintiff totally and permanently incapacitated for all work.
[46] PCB 84-96
63 The plaintiff was examined at the request of the insurer by Dr Stephen Stern, consultant psychiatrist, in December 2001, June 2003 and June 2004.[47] He considered the plaintiff was suffering a chronic adjustment disorder with depressed mood related to the injury of June 2001, and the continuing pain. From a psychiatric aspect alone, he considered the plaintiff as fit for employment. He thought the plaintiff would benefit from psychiatric treatment, and noted that he was moody, had disturbed sleep and suffered a loss of energy and appetite. His memory and concentration were claimed to be reduced.
[47] DCB 40-53
64 Finally, the plaintiff was examined by Dr David Weissman, psychiatrist, on one occasion in December 2004.[48] He noted a range of symptoms as to affect, thought content, cognition and judgment[49] and considered the plaintiff as suffering a moderate adjustment disorder with depressed and irritable mood as a consequence of his physical injuries. Like Dr Stern, he did not consider there was any incapacity for work from a psychiatric perspective.
[48] DCB 62-72
[49] DCB 67
Conclusions as to the Psychiatric Medical Evidence
65 I was not impressed with the opinions of Dr Rigby. I found them somewhat florid and partisan. His claim that other practitioners ought not to consider the plaintiff exaggerating was not open to him.
66 I was impressed with the opinions of Dr Nathar, who has seen the plaintiff of more recent years. He considered the plaintiff suffering a significant psychiatric disorder in the nature of a severe chronic adjustment disorder. In terms of diagnosis, there was not a considerable difference between his opinion and those of Doctors Stern and Weissman. The opinion of Dr Stern is significant as he has seen the plaintiff regularly over a number of years. The real difference between the opinions of Doctors Nathar and Stern is as to the severity of the depressive illness, and the effect upon the plaintiff’s work capacity.
67 It is always difficult to determine as between opinions without hearing the doctors in evidence. However, on balance I prefer the opinions of Dr Nathar. In the course of his evidence, it appeared to me the plaintiff was affected by psychological symptoms.
Vocational Opinions
68 The plaintiff underwent a vocational assessment at the request of the defendant with Ms Leonie Schneider on behalf of Australian Vocational Link.[50] The assessment was conducted in June 2003. Ms Schneider reviewed the medical opinions then available. Of note is that she was provided only with the orthopaedic reports of Mr Polke, and not the more recent reports which have been provided to me. As part of the history the plaintiff described to Ms Schneider the olive farm at Lake Boga and some of the equipment and machinery thereupon. She said:
“Mr Petrovski definitely gave me the impression that he is working the
land.”
[50] DCB 215-241
69 She noted that amongst the plaintiff’s licences, there was included a forklift licence and fishing licence. She said that any employment the plaintiff was able to undertake would include restrictions and the plaintiff should avoid:
ƒ heavy lifting above 5 kilograms on a regular basis and up to 8 kilograms
intermittently;ƒ repetitive bending or stooping; ƒ repeated floor to knee activities; ƒ static postures and be permitted to sit and move at will. 70 As a result, Ms Schneider suggested the plaintiff could undertake work in the following areas:
ƒ “horticultural nursery assistant;
ƒ apprentice nursery person;
ƒ gardener’s assistant; ƒ farm hand in light duties; ƒ process worker in light production; ƒ quality controller; ƒ product assembly in light duties; ƒ hand packer; ƒ cleaner;
ƒ delivery agent, courier driver; ƒ taxi driver, limousine driver; ƒ store person in light duties; ƒ welder.”[51]
[51] DCB 226
71 She ascribed a wage value to each of these occupations. She formed the view[52] that there was little incentive for the plaintiff to return to work given that he was living rent-free with his mother and wife and had access to funds through his mother as needed. She “suspected” that the plaintiff’s tolerance for physical work was greater than he would have Ms Schneider believe. She concluded:
“He is essentially doing what he wants to do.”
[52] DCB 228
72 I was not assisted by the opinion of Ms Schneider. Firstly, I am of the view that the plaintiff’s work capacity is to be determined according to the views of the various medical practitioners, and not according to the view of a vocational specialist who has limited access to current orthopaedic opinion. Further, Ms Schneider’s views are at least in part resting upon suspicions she holds as to the plaintiff’s work capacity, and inferences that she draws as to his incentive to return to work. I am not persuaded these suspicions and inferences have a sound basis in evidence.
73 Ms Judith Long, occupational therapist, on behalf of Evidex, provided a vocational report for the plaintiff.[53] Ms Long concluded that the plaintiff’s capacity for work was restricted to sedentary occupations and those which required no formal qualifications. Ms Long reviewed the occupations as proposed by Ms Schneider, and while accepting that the plaintiff could perform some aspects of the various jobs referred to, she noted many of the jobs required sustained standing or sitting, lifting and carrying heavy loads and bending and stooping. She noted that the plaintiff’s reduced sitting tolerances made it unlikely that he would benefit from re-training so as to increase his vocational qualifications. She thought that given the injuries, the plaintiff would have significant difficulties obtaining employment for which he was suited. By letter dated 20 October 2008, Ms Long was provided with a range of additional medical reports,[54] and having considered the medical opinions, concluded that the plaintiff had no current work capacity and that that situation was unlikely to change. In forming this conclusion, Ms Long noted:
[53] PCB 46-59c
[54] PCB 59a
• The plaintiff had not worked for six years and had lost marketable skills. •
He currently had a sedentary lifestyle which led to lowered fitness and conditioning.
•
He would have to re-train in order to qualify even for a job with low physical demands.
•
He was affected by anxiety and depression which would make re-training difficult.
74 Again, I observe that in my view the plaintiff’s work capacity is to be determined more according to medical opinion rather than vocational assessment. However, of the two opinions, I prefer that of Ms Long.
Credibility of the Plaintiff
75 A significant challenge was mounted against the plaintiff’s credibility on the following grounds:
•
Shortly before injury the plaintiff had purchased a holiday property at French Island. The house on the property had been substantially renovated and sold recently at considerable profit. It was suggested the plaintiff actively participated in that renovation;
•
The plaintiff played a more active role in the olive plantation at Lake Boga. At the very least he travelled regularly to the property, a round trip of some six hours, and carried out a business involving olive production;
•
An examination of the plaintiff’s taxation materials indicated that even accepting his wife has worked full-time throughout the relevant period, the plaintiff spent significantly more than he earned, indicating there was a source of funds which the plaintiff had not disclosed.
76 The property at French Island was purchased shortly prior to the plaintiff’s injury for approximately $75,000. It was sold recently for approximately $330,000. Extracts, including photographs from internet advertising of the property were tendered into evidence.[55] These photographs indicate there were extensive renovations to the house on the property, including considerable woodwork, the application of melamine to the ceilings and other areas, and a new kitchen. It was put to the plaintiff that he actively participated in this renovation. It was suggested he had gained experience in a previous job working with melamine. Throughout his testimony, the plaintiff firmly denied he had actively participated in this renovation. He said that members of his family assisted, and in particular, a local carpenter, did the woodwork. The plaintiff admitted that at one or another time he may have assisted by holding pieces of wood or undertaking minor works. He firmly denied any further involvement.
[55] Exhibit 2
77 It is clear from various financial records that the plaintiff travelled regularly to French Island. I was provided by the defendant with an extensive chronology extracted from these financial records which were said to map the purchases made by the plaintiff in relation to the renovation at French Island, petrol and other supplies purchased in and around French Island, ferry trips to the islands, and generally expenses related to that property. While it is difficult to be precise, I have concluded that the plaintiff over the years since injury travelled fairly regularly to French Island, perhaps six to eight times per year on average and in addition, went to various timber yards and hardware stores to purchase timber and other material for the renovation. To do this, the plaintiff had to co-ordinate the carpenter and others who assisted in the renovation, travel to the various stores to pick up the timber and equipment and undertake some supervision of the renovations.
78 I am not satisfied upon the evidence that the plaintiff played any real role in the work undertaken at French Island. I do, however, accept he travelled there on a reasonably regular basis, a round trip of some three hours, purchased timber and other materials to be used in the renovations, and co- ordinated the work. His involvement in respect of this property was more substantial in a general sense than he disclosed in his affidavits, and in the histories to the various doctors. I find, particularly in relation to the travel, that this was an activity I would not have expected the plaintiff to be able to undertake with the regularity with which it was performed.
79 In relation to the Lake Boga property, again it was suggested that the plaintiff had a far more extensive involvement in the olive farm than was described to the Court. The plaintiff had admitted doing some work to clean the filters which supplied water to the olives but denied any extensive work on the property. He said this was conducted largely by his brother-in-law and other members of the family and friends. He admitted that while the trees did render an olive crop, this was very limited given the lack of maintenance carried out at the property, and returned only a minor income each year, less than $500. It is clear from the plaintiff’s taxation materials that he claimed extensive expenses as a tax deduction in respect of this property.
80 Again, the aspect of his involvement in this property which in my view is inconsistent with the injury to his lower back and its consequences, is the fact that he was able to regularly travel to Lake Boga over the years by car. Again, it is difficult to be precise, but it would appear that he would travel to the property six to eight times per year and regularly stay there overnight. In addition, from time to time he purchased plumbing and mechanical supplies. He denied firmly that he operated any of the machinery at the property, performed anything more than minor maintenance nor was involved in the harvest of the olives.
81 Again, while I have some reservations, I accept the evidence of the plaintiff that his involvement in the heavier duties required to maintain the property was nothing more than minor. Again, I am of the view that his capacity to travel to the property is inconsistent with his complaints to the Court and to the various medical practitioners in relation to the extent of the pain and restriction emanating from his spine.
82 It was put by Mr Moore that the plaintiff was on notice about the challenge to his credibility involving his involvement in both these properties given the matter was before this Court in 2004, and a similar challenge was made. In those circumstances, it would be expected that the carpenter at French Island, the plaintiff’s brother-in-law and possibly other members of his family ought to have provided affidavits detailing the extent in their respective involvement in the properties. I accept this submission as it seems to me that it was reasonable to expect a challenge by the defendant in this regard and affidavits as described would have been appropriate to respond to such a challenge. I draw the inference that had such affidavits been provided, they would not have assisted the plaintiff’s cause.
83 Extensive cross-examination was directed to the plaintiff on the one hand as to the expenditure by the plaintiff on the properties, and in relation to general living expenses, as compared to the income both he and his wife provided on the other. Financial documents[56] were used as an aide-mémoire to illustrate this point. In response, the plaintiff explained that he had received considerable amounts of money from his mother in whose house he and his family lived, to support the enterprises both at French Island and Lake Boga. He was uncertain of the amount, but in evidence said it was something in excess of $50,000. In addition, on at least one occasion the plaintiff was able to sell water rights in the sum of $13,000. As stated, his wife worked full-time throughout.
[56] DCB 344-351
84 On the basis of the evidence provided, I was not able to draw the conclusions which Mr Moore submitted I ought draw. There is some confusion as to where the funds came from to enable the plaintiff to fund the renovations at French Island, and pay for the mortgage over Lake Boga, and to provide for all the usual expenses, including petrol and the like for his family. Were I to draw the inference Mr Moore urged, I would have to conclude that there was a source of income to the plaintiff which he had not disclosed, either in tax returns, or to the Court.
85 It appeared to me that the plaintiff was frank in his disclosure of financial documents used to support the preparation of his taxation returns. In fact, I was informed that the plaintiff had provided a large suitcase to the defendant full of receipts, accounts and the like and that the defendant had opportunity to consider the contents. I further note that the plaintiff did disclose to the medical practitioners that he had the property at Lake Boga and travelled to there from time to time. Given the allegation was made by Mr Moore, in my view, he bears the onus of proving it. I was not satisfied that this onus had been met. While the expenditure of the plaintiff and his family does seem substantial, even more so than the income, I accept that the plaintiff’s mother did provide monies from time to time, and at the end of the day I am not satisfied that there is any other source of the plaintiff’s income save as disclosed.
86 There were various further challenges made to the plaintiff’s credit, including that he undertook holidays in Queensland, failed to keep a log book in relation to his use of a vehicle for business purposes, travelled overseas for six weeks in August 2002, undertook some repair work to motorcycles and generally he was able to undertake a range of activities inconsistent with his complaints of pain and restriction. I am not convinced, however, that these matters significantly affect the plaintiff’s credibility.
87 In summary, generally I accept the plaintiff as an honest witness, although with some reservations. I find that particularly his travel to and from the various properties as extensive and beyond what I would have expected him to be able to do given his complaints of severe pain to the spine, and difficulties with sitting for any length of time. In evidence, the plaintiff explained that on these longer trips he would stop regularly. Further, his co- ordination, particularly of the renovations at French Island, show a capacity for organising, concentration and supervision beyond that which I would have expected, particularly given the psychological distress about which he has complained to the various doctors. Further, I would have expected affidavits from persons involved in these properties, but none have been provided.
Disentangling the Physical from the Psychological
88 There is little doubt that there is a significant functional element to the plaintiff’s presentation. The extent varies according to the medical practitioner involved. Mr Haw[57] noted there was a “lot of overlay complicating the clinical picture”. Mr O’Brien observed there was some functional involvement.[58] Mr Simm[59] did not think that there was any elaboration of physical signs. Dr Clayton Thomas[60] noted there were a number of significant non-organic symptoms.
[57] PCB 41
[58] PCB 61d
[59] PCB 99
[60] PCB 104
89 The defendant’s practitioners, particularly Dr Barton,[61] Mr Blue,[62] Mr Buzzard[63] and Mr Clive Jones[64] were all of the view there was less in the way of physical injury, and a significant non-organic component. Some suggested there was conscious exaggeration.
[61] DCB 24
[62] DCB 38
[63] DCB 59
[64] DCB 78, DCB 81
90 As prescribed by s.134AB(38)(h) of the Act, I must disregard the psychological or psychiatric consequences for the purposes of the physical injury. While a disentangling exercise must be undertaken, if the medical evidence permits a conclusion that the physical consequences of injury achieve the “very considerable” level, it is not necessary to actually disentangle or strip away the psychological or psychiatric consequences.[65]
[65] see Zivolic v Hella Australia Pty Ltd [2007] VSCA 142, at paragraph 19
91 In Jayatilake v Toyota Motor Corp Australia Limited,[66] Pagone AJA noted that in any disentangling exercise there may well be an overlap between the consequences of physical injury, and those of a psychological nature. The mere fact that there was such an overlap ought not to exclude those consequences which may have more than one explanation.
[66] [2008] VSCA 167
92 I accept that there are psychological factors affecting the plaintiff’s presentation. In essence the depression and anxiety from which I accept he is suffering have the consequence of amplifying his pain. These psychological symptoms also magnify in the plaintiff’s mind his disability.[67]
[67] See reports of Mr Brownbill, PCB 28; Dr Thomas, PCB 104
93 However, even accepting there is an “overlap” as referred to in Jayatilake, I am satisfied that, accepting the opinion of the various treating and consulting specialists referred to above, that by far the major aspect or cause of the plaintiff’s pain is the injury to the lower two discs of his spine, in the nature of an aggravation of the underlying degenerative disease. This is clearly evident from the radiology showing bulging or protrusion, even disc derangement in the view of some practitioners, in these two discs.
Conclusions as to Pain and Suffering Consequences
94 I accept that in the subject incident the plaintiff suffered an injury to the lower two discs of his spine. There was an underlying degenerative process already present, but this was asymptomatic. The incident involved the manoeuvring of a very heavy spool. I accept the plaintiff suffered immediate significant pain in his back with some referred pain into the buttocks. From that time to the present he has undergone treatment with a range of practitioners, including specialist orthopaedic surgeon and neurosurgeon. I accept that the pain has continued without significant relief from that time to the present, and is likely to so continue into the future. While surgery was considered as a possible option at the outset, it is no longer likely.
95 I accept that the pain in the plaintiff’s spine requires treatment from a range of medication which provides some relief. I accept there is a range of recreational, domestic and social activities in which the plaintiff is either precluded or restricted. I am satisfied that this condition is permanent. There is no practitioner suggesting there is any relief in the foreseeable future.
96 I accept that there is a functional element to the plaintiff’s presentation, but overwhelmingly his pain and restriction has a physical basis according particularly to his treating practitioners.
97 I have some reservations about the claims by the plaintiff as to pain and restriction given his capacity to travel regularly to French Island and Lake Boga, and I have some reservations about the extent to which the plaintiff claims to be disabled from both a physical and psychological perspective given particularly his capacity to co-ordinate and supervise renovations at French Island. I further note I would have expected affidavits from the persons involved in these properties.
98 On balance however, and notwithstanding these reservations, I am satisfied that the plaintiff suffers a significant degree of pain and restriction. I am satisfied that he reaches the “very considerable” level in relation to pain and suffering and I propose to grant leave to issue common law proceedings in that regard.
Conclusions as to Economic Loss Consequences
99 The plaintiff remained in employment with the defendant until December 2002. His employment was then terminated as it was said there was no suitable work available to him. It is clear there was a significant dispute between the plaintiff and the defendant at this time. In any event, he did not leave employment as a result of incapacity.
100 It was submitted by Mr Lewis, that in accordance with the principles of Smorgon Steel Tube Mills Pty Ltd v Majkic,[68] that the employment of the plaintiff after injury and until December 2002 was contrived or made up employment, unrealistic in the open labour market. I am not satisfied, on the evidence that this is the case. There is little as to the nature of the plaintiff’s employment duties over this period and although I accept the plaintiff was working in modified duties, I do not accept that the principles espoused in Smorgon Steel Tube Mills Pty Ltd v Majkic apply. However the plaintiff’s work capacity must be judged as at the present time. It may be the plaintiff would have continued on in his employment had there been work available after December 2002. It appears to me his situation has change over the last 7 years. His back pain and incapacity has persisted. In considering the matters referred to in the definition of suitable employment in the Act, I note he is 7 years older. An employer having regard to his skills and work experience would consider the employment gap of significance. He has no background in anything other than manual labour. All these matters affect his work capacity at the present time.
[68] [2008] VSCA 230, at paragraphs 37-39
101 I accept that the plaintiff has attempted to obtain employment in a range of areas but that attempt has not been successful.
102 It was accepted by the parties that the earnings of two comparable employees within three years of the plaintiff’s injury were respectively $49,000 and $60,000 gross per year. Mr Lewis submits I ought to accept the median of these two figures as an appropriate figure for the plaintiff’s “without injury” earning capacity as required by s.134AB(38)(f). This translates to a gross weekly figure of $1,058.00. Sixty per cent of this sum is $635.00 gross per week.
103 The second part of the formula requires an assessment of the plaintiff’s capacity for suitable employment at the present time. There are a range of practitioners who are of the view the plaintiff has no current work capacity.[69] Other practitioners consider the plaintiff does have a capacity for light duties.[70]
[69] Ms Judith Long, PCB 49b; Mr Mangos, PCB 81; Dr Nathar, PCB 89; Mr Simm, PCB 102c
[70] Mr Brownbill, PCB 25, 29; Mr O’Brien, PCB 61el; Dr Clayton Thomas, PCB 104; Dr Polke, DCB 17; Mr Buzzard, DCB 60; Mr C Jones, DCB 78, DCB 81; Mr I Jones, DCB 86
104 The plaintiff’s general practitioner, Dr Towie, who treated the plaintiff over a considerable period of time, considered[71] that the plaintiff had the capacity to work for four hours a day, three days a week with restrictions. It would be necessary for the plaintiff to have time off as needed, he said.
[71] PCB 131
105 On balance, I do accept the plaintiff has a capacity for lighter duties, on limited hours. I accept that realistically the assessment by Dr Towie is appropriate that the plaintiff has the capacity to work four hours per day, three days a week.
106 I reject the views of Dr Barton,[72] Mr Blue[73] and Ms Schneider[74] that the plaintiff has a full capacity for employment in a range of areas.
[72] DCB 39
[73] DCB 39
[74] DCB 225
107 I further bear in mind that although the plaintiff was able to successfully complete his Year 12 studies at school, his employment throughout his working life has been in the manual area, particularly as a machine operator and process worker. Given his age, background, injury and psychological problems, I accept that the plaintiff has no real prospect of obtaining employment. I must, however, have regard to the physical consequences in determining work capacity.
108 Given particularly the plaintiff’s ability to drive to the various properties, I do accept that he has the capacity for lighter forms of employment, although on a part-time basis. I am not satisfied, however, that that capacity extends to beyond sixty per cent of the capacity he would have had without injury. It is difficult to be precise as to the number of hours and the area of employment his restrictions would allow, but I am satisfied that that would be less than half of his “without injury” capacity.
109 I am not satisfied that re-training or rehabilitation would make any significant difference to this situation. He undertook a rehabilitation program at Dorset Rehabilitation Centre which did not provide any significant rehabilitation, or expanded vocational capacity.
110 In these circumstances, I am satisfied the plaintiff has satisfied his onus to prove that his capacity is reduced beyond forty per cent as a result of injury. I propose to grant leave therefore in respect of economic loss.
111 Given my findings that the plaintiff has achieved the required level both as to pain and suffering and economic loss as a result of the physical injury, it is not necessary for me to consider the psychological consequences.
112 I shall make orders in the terms attached.
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