Phillipou v Not Quite Right Pty Ltd
[2013] VCC 1230
•18 September 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-11-05192
| PETER PHILLIPOU | Plaintiff |
| v | |
| NOT QUITE RIGHT PTY LTD | First Defendant |
| and | |
| WORKSAFE VICTORIA | Second Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 and 10 September 2013 | |
DATE OF JUDGMENT: | 18 September 2013 | |
CASE MAY BE CITED AS: | Phillipou v Not Quite Right Pty Ltd & Anor | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1230 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Compensable injury to the left knee – surgery – whether the pain and suffering consequences are “serious” – film – contrast between the plaintiff’s evidence and what was demonstrated on the films – creditworthiness and reliability of the plaintiff
Legislation Cited: Accident Compensation Act 1985, s134AB(38)(c)
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260
Judgment: The plaintiff’s Originating Motion is dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D Seeman | Nowicki Carbone |
| For the Defendants | Mr R Kumar | Hall & Wilcox |
HIS HONOUR:
Introduction
1 Before the Court is an application brought by Originating Motion filed 31 October 2011, by which the plaintiff applies for leave pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) to bring proceedings to recover damages for injury suffered by her arising out of or in the course of her employment with the first defendant.
2 The plaintiff seeks leave to bring such a proceeding for pain and suffering.
3 Mr D Seeman of Counsel appeared for the plaintiff and Ms R Kumar of Counsel appeared for the defendants.
4 The injury suffered by the plaintiff for which leave is sought is an injury to the left knee.
5 The following evidence was adduced during the hearing:
· The plaintiff gave evidence and was cross-examined;
· The plaintiff tendered his Court Book (“PCB”), pages 5-21 and 25-71 Exhibit A;
· The defendants tendered their Court Book (“DCB”), pages 10-12b, 13-17 and 22-32: Exhibit 1.
6 The application is brought under the definition of “serious injury” contained in ss(37)(a) of the Act which requires the plaintiff to prove that he has suffered a “permanent serious impairment or loss of a body function”.
The statutory scheme
7 The relevant considerations which apply to such an application are as follows:
(a) The plaintiff must prove that he has a suffered a compensable injury, that is, an injury which he suffered arising out of or in the course of his employment on or after 20 October 1999.
(b) The injury and the impairment must be permanent, that is, permanent in the sense that it is likely to last for the foreseeable future.
(c) Sub-section (38)(c) provides that the impairment must have consequences in relation to pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may fairly be described as being more than “significant” or “marked” and as being “at least very considerable”.
(d) Subsection (38)(h) provides that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purpose of paragraph (c) of the definition of “serious injury” and not otherwise.
(e) In conformity with Barwon Spinners Pty Ltd & Ors v Podolak,[1] I must identify the injury and the impairment said to be produced in consequence of the injury, whether the impairment is permanent, that is, likely to last for the foreseeable future, and whether the consequences for the plaintiff are such as to satisfy the “very considerable” test contained in ss(38)(c). I have applied the principles set forth therein in reaching my conclusions in this application.
[1](2005) 14 VR 622
The Plaintiff's background
8 The plaintiff was born in May 1964 in Cyprus. He is now 49 years of age. He is a married man with two adult children.
9 The plaintiff completed some of his schooling in Cyprus prior migrating to Australia in 1977. He subsequently attended Flemington High School, completing Year 11.
10 The plaintiff left school in 1980. It would appear that he subsequently worked in the hotel industry until 19 February 2007 before commencing work for the first defendant. The first defendant runs a supermarket chain. The plaintiff was appointed a regional operations manager, which required him to manage about six stores.
11 In about October 2008, the plaintiff commenced working for the Regis Group Care Home Victoria as a general manager of its operations. He continues to work for that employer in that capacity.
The incident
12 On 5 June 2007, the plaintiff stood on a set of portable step known as a “safe-t-step”. It gave away from under him. He fell forward, landing on his knees and elbows. He experienced immediate pain in his left knee and right elbow.
The Plaintiff’s medical treatment
13 The plaintiff initially consulted Dr Ng, general practitioner, on 25 June 2007. He was treated conservatively. An x-ray was taken of his left knee, which did not demonstrate any abnormality. He was referred to Mr Burns, orthopaedic surgeon, for treatment.
14 The plaintiff saw Mr Burns in January 2008. Mr Burns examined the plaintiff. The results of his examination were consistent with the plaintiff having suffered a medial meniscal tear. Mr Burns performed an arthroscopic investigation of the plaintiff’s left knee on 14 March 2008 at the Epworth Hospital. It revealed a very large double parrot beak tear of the posterior 50 per cent of the medial meniscus in association with some scuffing of the tibial and femoral articular surface adjacent to the tear. The tear was resected.[2]
[2]PCB 49 and 51
15 Mr Burns was in little doubt that the damage to the plaintiff’s left knee was caused by the incident.[3]
[3]PCB 55-56
16 Mr Burns reviewed the plaintiff on 30 October 2012. At that time, the plaintiff told him that he was suffering from some anteromedial and anterolateral aching in his left knee, particularly with changeable weather and after running. He also told him that he had difficulty walking longer distances and balancing in his boat while fishing. The worsening led to the plaintiff taking occasional Panadol for pain relief. He also told him that he experienced occasional swelling and catching in his left knee.
17 Mr Burns referred the plaintiff to have an MRI scan, which was undertaken on 17 November 2012. He did not consider that it revealed any new pathology in the plaintiff’s left knee; however, he said there was evidence of some thinning of the articular cartilage in the medial compartment without a full-thickness defect. He informed the plaintiff to use regular Panadol, intermittent anti-inflammatory medication and to engage in non-weight-bearing exercise in a pool and on a stationary bike.
18 Mr Burns reviewed the plaintiff again on 25 January 2013, when Mr Burns gave the plaintiff and an intra-articular injection of Synvisc, which I understand to be a viscous material. Mr Burns reviewed the plaintiff on 23 March 2013 when the plaintiff reported that he had a very good initial reaction to the injection, but there had been some recurrence of symptoms, particularly if he increased his level of activity.
19 Mr Burns was of the opinion that the plaintiff had evidence of degenerative changes in his left knee which he considered would gradually progress, and that there was the possibility that he might require further treatment which would include activity modification, regular analgesic, an exercise program and perhaps further injections. He also considered that if the degenerative changes continued to progress, that it was possible that the plaintiff might require further surgical intervention.[4]
[4]PCB 53-54
20 The plaintiff saw Dr Ng on three occasions in 2007; on five occasions in 2008; once in 2009; on three occasions in 2011, and on three occasions in 2012.[5] The plaintiff told Dr Ng that he was unable to fish using his boat; he was unable to walk (I assume he meant unable to walk long distances); he was unable to run or jog; he had difficulty bending and squatting; he had difficulty doing household duties such as cleaning the shower, using a dustpan and undertaking maintenance and gardening jobs, and he had difficulty driving a manual car.
[5]PCB 43
21 Dr Ng appears to have accepted the plaintiff’s complaints of the extent that he was disabled by the knee injury. He appears to have accepted the opinion of Mr Burns regarding the plaintiff’s residual disability resulting from the knee injury. He does not appear to have expressed an independent opinion in his latest report dated 28 April 2013. However, it would appear that with the benefit of Mr Burns’ opinion, Dr Ng considered the plaintiff required continuing treatment. He considered one of the treatment options was to refer the plaintiff to Dr Clayton Thomas, who I understand it is a specialist in rehabilitation and pain medicine. The plaintiff did not give any evidence that he has seen Dr Thomas, or any other medical specialist subsequent to last seeing Mr Burns.
The Medico-legal opinions
22 The plaintiff saw Mr Myers, surgeon, on 12 September 2012. On examination, Mr Myers found a normal range of movement with some cracking in the movements of the left knee associated with pain. He found no other abnormality. It would appear that Mr Myers was unable to determine the precise nature of the plaintiff’s condition when he saw him. In the end, he was of the opinion that the pathology in the plaintiff’s left knee was of considerable clinical significance which would restrict his domestic, recreational and employment activities, but he did not say to what extent nor how.
23 The opinion of Mr Myers is of little value, because much of it was dependent upon him guessing out what treatment Mr Burns might offer the plaintiff, and in particular, whether Mr Burns might refer the plaintiff for an MRI scan to determine whether there was any further damage to the meniscus or to the joint. His opinion is ultimately overtaken by Mr Burns’ treatment of the plaintiff summarised in paragraph 17 and 18 above.
24 The plaintiff saw Mr Thai, orthopaedic surgeon, on 20 May 2013. He was provided with the MRI scan undertaken on 17 November 2012. On examination, he found that the plaintiff walked with a mild limp. It was something which the plaintiff denied. He found mild patellofemoral crepitus at the front of the knee and anterior knee pain, exacerbated with resisted quadriceps knee extension. The only other abnormality was anteromedial joint line tenderness.
25 Mr Thai obtained a history from the plaintiff that he has difficulty driving long distances using a manual car; is no longer able to undertake handyman work at home, and now obtains outside help; is unable to jog; is unable to use exercise machines at a gym, is no longer able to enjoy fishing using his boat because of the vibrations produced by the boat and difficulty balancing when in the boat. Mr Thai appears to have accepted the plaintiff’s complaints, and appears to be of the opinion that the plaintiff is restricted in each of those domestic and recreational activities permanently.[6]
[6]PCB 69-71
26 Mr Kumar tendered medical reports from Mr Henderson, surgeon,[7] and Mr Doig, surgeon,[8] but did not rely on them. They refer to injury suffered by the plaintiff in 1989, which is of no relevance to this proceeding.
[7]DCB 5-7
[8]DCB 8-9
27 Mr Hooper, orthopaedic surgeon, examined the plaintiff for the defendants on 12 July 2011 and 7 August 2013. On 12 July 2011, the plaintiff told Mr Hooper that he suffers aching at intervals; walking did not cause him any discomfort; he suffered occasional night pain, and worsening pain in cold weather. On examination, the only abnormality found by Mr Hooper was the plaintiff's ability to only do a three-quarter squat. It would appear that Mr Hooper considered that the plaintiff had an uncomfortable knee with no clinical signs of any significant problem or radiological findings to suggest that the plaintiff’s left knee was deteriorating.[9]
[9]DCB 10-12
28 On 7 August 2013 the history obtained by Mr Hooper was somewhat different. The plaintiff told him that his left knee continued to bother room; he suffered from aching in his left knee; he was unable to walk more than a kilometre before experiencing discomfort, and he suffered night discomfort. He had not taken out his boat to go fishing for some two years. On examination Mr Hooper noted that the plaintiff had difficulty squatting fully. He noted some loss of bulk of the quadriceps on the left side, but otherwise no other abnormality. He was provided with the MRI scan undertaken on 17 November 2012. He considered that it showed little to explain the plaintiff’s symptoms.
29 Mr Hooper considered that the plaintiff continued to suffer discomfort in the left knee. He said it was difficult to be exact to determine the cause of the pain and discomfort experienced by the plaintiff. He did not think any surgical intervention was warranted, but considered that the plaintiff’s left knee injury could be managed symptomatically. In conclusion, he considered that the plaintiff’s knee was stable and that his prognosis was fair. He considered that the left knee injury was unlikely to improve and that it will continue to bother him as time goes on, and only time will tell whether he will suffer any deterioration in the years to come.[10]
[10]DCB 12a -12b
The Plaintiff’s evidence
30 Mr Kumar made a sustained and extensive attack upon the plaintiff’s creditworthiness and reliability directed to parts of the plaintiff’s affidavits, to histories given to examining medical practitioners, and by contrasting the plaintiff’s evidence and histories given to medical practitioners with films which were shown to the plaintiff.
31 I will firstly set out the substance of what the plaintiff said in his affidavits relevant to the pain and suffering consequences which he contends are serious:
· Constant pain, which worsened intermittently, especially in cold weather
· An inability to engage in heavy, strenuous and repetitive activity
· Consistent difficulty in being able squat, bend, jump or climb stairs
· An inability to stand for a long period of time or walk for a long period of time
· An inability to stand for periods of time to undertake cooking
· An inability to clean the shower in his home, use a dustpan, undertake maintenance jobs around his home and undertake gardening work
· An inability to run, kick a ball or attempt to play sport
· The inability to engage in physical exercise has made it difficult for the plaintiff to improve his health in the setting of a diagnosis of high cholesterol in 2006
· Difficulty driving long distances driving a manual car
· Interference with his sexual relationship with his wife, which is now sporadic.[11]
[11]PCB 17-18
32 In his second affidavit, the plaintiff said he suffered the following additional pain and suffering consequences:
· Frustration at having trouble doing vacuuming and mopping
· An inability to play tennis with his son on a weekly basis
· A further limitation on his ability to walk long distances due to deterioration in his left knee and ongoing pain
· Difficulty putting on shoes and socks and cutting his toenails.[12]
[12]PCB 20
33 The plaintiff last saw Dr Ng about two months prior to trial. He was due to see Mr Burns in the afternoon of the first day of the trial. Otherwise, his treatment appears to be conservative treatment. He said he takes two Panadol at a time, four times per day, to control the pain he experiences.[13]
[13]Transcript 7
The cross-examination
34 Mr Kumar showed films to the plaintiff which I think seriously undermine the creditworthiness and reliability of the plaintiff.
35 The first film was taken on 28 and 29 April 2012. The film taken on 28 April 2012 was short and of no consequence. It is the film taken on 29 April 2012 which is of greater significance:
· From about 9.39am, the plaintiff was seen standing on a roadway. He was in the company of several people.
· The plaintiff walked with three other men from about 9.30am. They walked mainly on the roadway to a market.
· At about 9.48am, the plaintiff and the other men were seen entering the precincts of an outdoor market.
· At about 10.05am, the plaintiff and the other men were seen walking slowly, and pausing at times.
· From about 10.05am and for some short time thereafter, the plaintiff and the other men walked away from the market and continued walking until 11.17am.
36 The plaintiff said that the film showed him walking to and from an outdoor market in Portarlington. It would appear that the plaintiff had no independent recollection of being at the market on 29 April 2012. He agreed that the film showed him browsing at the market. He was unable to say, at any time between the time he arrived the market and the time he left, whether he stood or walked all of that time, leaned on anything or sat down. The plaintiff said that what he was seen doing on the film would be a problem for him if he did not take medication and had “stops and rests”.[14]
[14]Transcript 51-54
37 My analysis of the film is that the plaintiff was able to walk at an even pace without any apparent interference by his left knee injury. The film was approximately 40 minutes in length. The length of time which the plaintiff was walking, and was on his feet, appears to me to exceed the thrust of what the plaintiff said in his affidavits and in histories to medical practitioners of his capacity to be mobile.
38 The next film was taken on 14 July 2012:
· At about 8.22am, the plaintiff was in the front garden of his home either using a rake or a broom. He appeared to use the rake or the broom vigorously, holding it in both hands and moving it back and forth across the ground. At one point he bent over to a significant degree when he was near the porch area of his house.
· At about 8.29am, the plaintiff bent over quickly and to a significant degree.
· At about 9.29am, the plaintiff the plaintiff was pushing a motor mower, mowing the nature-strip outside his home. He manoeuvred the mower around three trees on the nature-strip outside his home.
· Commencing at about 9.34am, the plaintiff descended onto his haunches in a fluid motion. He weeded the area around one of the trees on the nature-strip. He then appeared to rise up from his haunches as fluently as he descended. He then engaged in the same motion again with the next tree, and then again with the third tree. He then turned and engaged in the same motion on the footpath, removing weeds from the fence line of his home. He also bent on at least two occasions at the back and at the knees.
· Commencing at 1.51pm (13:51 hours on the video), the plaintiff was at his daughter’s home with his son, in her garden. He bent at the back and slightly at the knees. His son was in the background mowing the lawn.
· At about 2.01pm (14:01 hours), the plaintiff descended onto his haunches in a fluid motion. He put his hand onto his left knee with his left hand. He then descended onto both knees, and then back up onto his haunches. He then appeared to rise up from his haunches as fluently as he descended.
· At about 2.04pm (14:04 hours), he descended onto his haunches and back up again on two occasions.
· At about 2.12pm (14:12 hours), he descended onto his haunches and back up again on two occasions. He also bent slightly at the knees.
· At about 2.14 pm (14:14 hours), for a number of minutes thereafter, he descended onto his haunches and back up again on a least five occasions. He also bent slightly at the knees on a number of occasions.
· At about 2.39pm (14.39 hours), he used a broom to sweep. He appeared to use the broom vigorously, holding it in both hands and moving it back and forth across the ground.
39 The next film was taken on 5 January 2013:
· At about 12.04pm, the plaintiff was at the rear of his four-wheel-drive car unloading what appeared to be groceries outside his holiday home at Portarlington. At one point he bent over to pick something up. He carried bags of groceries from the car.
· At about 1.55pm, the plaintiff’s son launched the plaintiff’s boat into the water at Portarlington. The plaintiff stood by and watched as the boat was launched.
· At about 2.01pm, the plaintiff climbed onto the side of the boat and into it, taking the weight of his body on both of his legs.
· At about 2.04pm, and for some minutes thereafter, the plaintiff was seen behind the wheel of the boat while it was under power moving from where it had been launched.
· At about 2.22pm, the plaintiff’s boat was moving at a reasonable speed in seas which were slightly choppy. The boat was pulling a person who was on a “doughnut” connected by a length of rope to the rear of the boat. The boat appeared to me to be bouncing against the slightly choppy water.
· At about 3.20pm, the boat pulled in and against a pier. The plaintiff climbed from the boat up the side of the pier and onto the pier. It was difficult to see how the plaintiff did that, but it may have been that he climbed up a ladder, or some similar object, on the side of the pier. He then stood by while the boat was loaded onto a boat trailer.
40 The three videos tendered by Mr Kumar contained extensive video footage of the plaintiff. Mr Kumar and Mr Seeman came to an agreement that Mr Kumar would be permitted to show parts of the videos.
Findings
41 There is no doubt that the plaintiff suffered a knee injury which required surgery. There is no issue that the knee injury comprises the pathological changes in the meniscus described by Mr Burns. Nor is there any issue that there is some risk to the plaintiff of deterioration in the knee in the coming years.
42 However, having read the plaintiff’s affidavits, the transcript of his evidence and weighed up the competing submissions made by Mr Seaman and Mr Kumar, I have concluded that the plaintiff’s creditworthiness and reliability are very much in issue.
43 In Dwyer v Calco Timbers Pty Ltd (No 2),[15] Ashley JA made the point that whilst what has been lost bears upon the seriousness of the consequences contended for, the seriousness of those consequences may be informed to an extent by what has been retained. On my assessment of the plaintiff’s evidence, it appears to me that he has retained a great deal when a comparison is made between his life both before the incident.
[15][2008] VSCA 260
44 I propose to return to my summary of the pain and suffering consequences contended for by the plaintiff which are summarised in paragraphs 31 and 32.
45 The films demonstrate that the plaintiff was able to stand and walk for a significant period of time on 14 July 2012, walking to and from the market at Portarlington, and engage in two episodes of gardening at his home and at his daughter’s home, which both demonstrate that he can stand; walk; tolerate strain on the knee while using a broom or rake, push a motor mower and squat and kneel without any apparent difficulty. The film taken on 5 January 2013 demonstrates that he can lift and carry bags of groceries; climb onto and off his boat, and operate the boat in choppy seas.
46 I do not accept that what I have seen on the films is consistent with someone who has constant pain which worsens intermittently. If he did have constant pain, he would not be able to walk, garden and use his boat in the manner I observed on the films.
47 The plaintiff’s general evidence that he cannot undertake heavy, strenuous and repetitive activity is likewise inconsistent with what I have seen on the films. The episodes of gardening and climbing on and off his boat appear to me to be relatively heavy in nature, somewhat strenuous in the sense of stress on his legs, and the gardening was repetitive, both at his home and at his daughter’s home.
48 The plaintiff’s evidence that he has difficulty squatting, bending, jumping or climbing stairs is likewise inconsistent with what I have seen on the films. The plaintiff can squat without any difficulty. He is able to bend at the knees. Although I did not see him jumping, the plaintiff said nothing about whether he had any occasion to jump before the incident. I rather suspect he did not. To the extent that he says he cannot climb stairs is also inconsistent with what I have seen on the films, because the plaintiff was able to climb onto and off his boat with no apparent difficulty.
49 If the plaintiff is able to squat as easily as I saw on the films, and as often, it is difficult to understand how he is then unable to clean the shower at his home, use a dustpan or undertake maintenance jobs. As for not being able to undertake gardening work, that is simply untrue for the reasons which I have outlined above.
50 The plaintiff’s evidence that he cannot run, kick a ball or attempt to play sport is unsupported by evidence that there were occasions when he engaged in activities of that kind, except that he did say he played tennis with his son, which is something he said he is no longer able to engage in. I rather suspect that the plaintiff did not engage in activities of that kind to any great extent. My reasons for reaching that conclusion are that I do not think he is creditworthy or reliable overall.
51 The plaintiff’s evidence that he cannot engage in physical exercise which has compounded his problems with high cholesterol is inconsistent with what I have seen on the films. Again, the strenuous gardening, walking to and from the market and his ability to climb into and out of the boat appear to me to be inconsistent with being unable to exercise.
52 The plaintiff’s evidence that he has difficulty driving a manual car is also inconsistent with his evidence. By choice, the plaintiff has a four-wheel-drive car. It is manual. According to the plaintiff, he drives a great deal in his present job. The fact is he is able to do so suggests that he can do that without any significant interference by the knee injury. However, he has an automatic car which he described as his wife’s car. No evidence was given of the domestic arrangements between the plaintiff and his wife regarding the use of their family cars, but it occurs to me that if he is really having difficulty driving a manual car, then the solution is sitting right in front of him – he can swap cars with his wife. In any event, it is difficult to accept that he has any real difficulty driving his manual car, because he does so five days a week, and has done so since he took on his present job.
53 The plaintiff’s evidence that his sexual relationship with his wife suffers interference by the knee injury is difficult to accept for the same reasons as I have already articulated relevant to the other activities which he said suffered interference due to the knee injury. Under cross-examination, the plaintiff said that he recovered from the injury to his elbow, and that reference to it still being a problem for him is untrue. He said that his right elbow injury made it difficult for him to take out his boat. He said his sexual relationship with his wife suffers interference because of his fear of exacerbating his right elbow injury, which is also untrue.[16]
[16]PCB 18
54 The plaintiff’s additional evidence of pain and suffering consequences referred to in paragraph 32 have essentially been dealt with above, with two exceptions. The plaintiff’s evidence that he is unable to play tennis with his son on a weekly basis has no substance. His son no longer plays tennis as regularly as he previously did because he is occupied in his university studies. That does not sit well with the plaintiff’s evidence that if he was uninjured, he would be playing tennis with his son on a weekly basis.[17]
[17]Transcript 40
55 The plaintiff’s evidence that he has difficulty putting on shoes and socks and cutting his toenails appears to me to be inconsistent with the level of mobility and flexibility which he demonstrated in the films. I do not accept that he has those difficulties.
56 The plaintiff commenced his evidence by adopting his affidavits. He recanted substantially when he was shown the films, but it was only after being shown the films that he recanted. Many of his answers were couched by not being able to remember, and when it was plain to him that he was shown engaged in significant physical activity, he sought to explain that by saying that he can engage in that sort of activity and at that level, but only after taking medication.
57 The impression I have of the plaintiff’s medical treatment is that it is not as significant as he suggested at first. He sees Dr Ng, but Dr Ng is not so impressed by the plaintiff’s knee injury to conclude that it is significant, because he is not prescribing the plaintiff any painkilling anti-inflammatory medication, which is often prescribed to workers who suffer significant musculoskeletal injuries. Dr Ng and Mr Burns seemed to be content to have the plaintiff take Panadol, rather than anything stronger. Although Dr Ng considered referring the plaintiff to have further treatment, that has not yet occurred.
58 Whilst I do not suggest that Panadol is not an efficient painkiller, it seems to me that it is somewhat demonstrable of the seriousness of the pain which the plaintiff says he presently suffers if he does not need painkilling medication beyond Panadol.
59 In the end, and after weighing up all of the evidence, I am not satisfied that the plaintiff is a creditworthy or reliable witness. I consider that many of his alleged pain and suffering consequences are overstated, or are untrue.
60 Furthermore, I think the plaintiff’s resort to not remembering and attempts to explain his capacity to engage in physical activity because of the use of medication was a vain attempt to avoid being candid. For example, the plaintiff said that he could not remember the film of the boating outing of 5 January 2013, but on occasions gave the impression that he did remember it, and then sought to excuse what he did on that occasion by saying that he took his daughter out on a boating trip because she implored him to take her out.
Orders
61 For the reasons set out above, I order that the plaintiff’s Originating Motion be dismissed with costs.
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