Qayom v Kylamanda Investments Pty Ltd (trading as Xanadu Playcentre and Café)
[2018] VCC 1675
•19 October 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| GENERAL LIST |
Case No. CI-17-04420
| ABDUL QAYOM | Plaintiff |
| v | |
| KYLAMANDA INVESTMENTS PTY LTD (trading as XANADU PLAYCENTRE & CAFÉ) | Defendant |
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JUDGE: | HER HONOUR JUDGE MORRISH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24, 25, 26, 27 September 2018, 1, 2 and 3 October 2018 | |
DATE OF JUDGMENT: | 19 October 2018 | |
CASE MAY BE CITED AS: | Qayom v Kylamanda Investments Pty Ltd (trading as Xanadu Playcentre & Café) | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1675 | |
REASONS FOR JUDGMENT
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Subject:DAMAGES – NEGLIGENCE – BREACH OF CONSUMER LAW
Catchwords: Assessment of damages – plaintiff fell from height injuring cervical, thoracic and lumbar spine and left shoulder – aggravation of previously asymptomatic degenerative changes to the spine – plaintiff also sustained psychiatric injury – pain and suffering – loss of earning capacity – medical and like expenses – gratuitous care
Cases Cited: Griffiths v Kerkemeyer (1977) 139 CLR 161
Judgment: Judgment for the plaintiff.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Mighell QC with Mr P Lamb | Zaparas Lawyers Pty Ltd |
| For the Defendant | Ms R Annesley QC with Ms R Kaye | Barry.Nilsson Lawyers |
Table of Contents
Background........................................................................................................................................ 1
The claim............................................................................................................................................. 3
The hearing......................................................................................................................................... 3
The issues to be determined.......................................................................................................... 3
Overview of the Plaintiff’s case..................................................................................................... 4
Overview of the Defendant’s case................................................................................................ 5
Summary of findings........................................................................................................................ 6
The Plaintiff’s case............................................................................................................................ 8
The viva voce evidence called on behalf of the Plaintiff....................................................... 11
The Plaintiff, Abdul Qayom......................................................................................................... 11
Evidence-in-chief.................................................................................................................. 11
The incident........................................................................................................................... 12
Aftermath of the incident...................................................................................................... 13
Cross-examination............................................................................................................... 19
Re-examination..................................................................................................................... 34
Dr Joseph Slesenger, occupational physician......................................................................... 34
Dr Slesenger’s report dated 4 April 2018.......................................................................... 34
Evidence-in-chief.................................................................................................................. 44
Cross-examination............................................................................................................... 45
Re-examination..................................................................................................................... 48
Rocky Vinci................................................................................................................................... 48
Cross-examination............................................................................................................... 50
Fouzia Qayom, the Plaintiff’s wife.............................................................................................. 51
Cross-examination............................................................................................................... 52
Dr Nathan Serry, consultant psychiatrist.................................................................................... 52
Dr Serry’s report dated 28 March 2018.............................................................................. 52
Evidence-in-chief.................................................................................................................. 54
Cross-examination............................................................................................................... 56
Professor Richard Garth Bittar, consultant neurosurgeon....................................................... 58
Professor Bittar’s first report, 23 September 2017............................................................ 58
Professor Bittar’s second report, 23 August 2018............................................................ 60
Evidence-in-chief.................................................................................................................. 62
Cross-examination............................................................................................................... 63
Re-examination..................................................................................................................... 66
Other documentary evidence...................................................................................................... 67
Dr Said K Mirranay, general practitioner........................................................................... 67
Dr Mirranay’s clinical notes................................................................................................. 67
Dr James Rowe, occupational physician.......................................................................... 67
Dr Rowe’s first report, 31 October 2017.............................................................................. 68
Dr Rowe’s second report, 30 August 2018........................................................................ 68
Shakthi Sri, physiotherapist................................................................................................. 68
Dr Brij Kishore, consultant psychiatrist.............................................................................. 69
Bundle of medical certificates signed by Dr Mirranay..................................................... 69
The Defendant’s case.................................................................................................................... 69
The viva voce evidence called on behalf of the Defendant..................................................... 70
Katherine Roslyn Dickinson........................................................................................................ 70
Cross-examination............................................................................................................... 72
Other documentary evidence...................................................................................................... 74
The Plaintiff’s submissions.......................................................................................................... 74
The Defendant’s submissions.................................................................................................... 76
Findings of fact................................................................................................................................ 78
The Plaintiff’s credibility.............................................................................................................. 79
Did the Plaintiff fabricate his account about an incident that had occurred at Xanadu on the same platform the day before the Plaintiff’s accident?............................................................ 79
Is the Plaintiff’s credibility undermined because he sought compensation from an early date? 81
Did the Plaintiff exaggerate the consequences of his injury and put on an act?......... 83
The nature and extent of the Plaintiff’s injuries.......................................................................... 84
Injury to the spine................................................................................................................ 86
Left shoulder injury............................................................................................................. 86
Psychiatric injury................................................................................................................ 87
Pain and Suffering....................................................................................................................... 87
Findings............................................................................................................................................ 92
Past economic loss.............................................................................................................. 93
Future economic loss........................................................................................................... 94
Medical and like expenses.................................................................................................. 98
Future medical and like expenses..................................................................................... 99
Conclusion and Orders............................................................................................................... 102
HER HONOUR:
Background
1 On 23 November 2014, the plaintiff, Abdul Qayom, took his wife Fouzia and his two young daughters, Hoorain and Hani, to the Xanadu Playcentre (“Xanadu”) at Hallam. Xanadu was then operated by the defendant, Kylamanda Investments Pty Ltd (“Kylamanda”). Although the defendant no longer operates Xanadu, the parties agree that its physical features are the same as those which existed at the relevant time. It is common ground that whilst at Xanadu, the plaintiff suffered injury when he fell from height after stepping onto a platform that formed part of the play equipment.
2 The premises at Xanadu is a high roofed, factory or warehouse-like structure, with a designated sitting area roughly in the centre of the room where there are a number of tables and chairs. This sitting area is surrounded by various forms of play equipment and structures that are erected adjacent to the building’s walls. A reception desk and kitchen is located immediately next to the entrance to the premises.
3 The largest play structure in Xanadu extends from the back wall of the building, furthest from the entrance. This interconnected, multilevel structure consists of two sets of slides reaching approximately 4 metres in height, sitting either side of a padded staircase of the same elevation. Facing this structure, the slides on the right side of the staircase appear to be constructed of inflated rubber and are in the shape of a passenger ship. At the top of the padded staircase there is a padded walkway abutting the back wall of the building. Nylon netting encloses the sides of the walkway and staircase.
4 Turning right at the top of the staircase and proceeding along the padded walkway in that direction leads to the inflatable slides, and then to a section of the play equipment where there are large plastic tunnels positioned approximately 2 metres above the ground. Partway along that walkway there is a left-hand turn onto a padded green platform (“the platform”) measuring approximately 1.2 metres by 1 metre in size. The platform is about half a metre lower than the section of walkway directly connected to the top of the padded staircase. The platform must be traversed in order to access the plastic tunnels next to the inflatable slide.
5 Underneath part of the elevated play equipment is a sectioned off room that is not visible from the rest of the play area. The floor of that room is constructed of concrete. Tables, chairs and other pieces of furniture are arranged in that room.
6 At approximately 4.30pm on the afternoon of the incident, the plaintiff’s eldest daughter, Hoorain, then aged under five years, became stuck in a section of the play equipment and began crying out. The plaintiff was with his wife and youngest daughter, Hani, nearby in the sitting area when he heard Hoorain’s cries for help coming from inside the play equipment.[1] The plaintiff first went to the reception counter seeking assistance but the attendant was occupied with other patrons. Having read signs attached to the play equipment advising patrons that “Parents or Guardians to accompany children at all times”[2] and “SLIDE RULES PARENTS ARE RESPONSIBLE”,[3] the plaintiff climbed the padded stairs in order to rescue his daughter. After ascending the staircase and walking along the padded walkway, the plaintiff stepped down the 0.5 metres onto the platform.[4] Without warning, the platform gave way, sending the plaintiff on an inevitable fall to the concrete floor around 3.5 metres below.
[1]Transcript (“T”) 10
[2]Exhibit A1
[3]Exhibit A2
[4]Exhibits B, C and D
7 Upon hearing commotion coming from beneath the play equipment, Mrs Qayom went to the sectioned off room underneath the broken platform. Members of Xanadu staff also attended. They found the plaintiff lying on the ground. He was short of breath and in pain. An ambulance was called. Members of staff told the plaintiff and his wife that the same platform was implicated in an incident the day before. They stated that, in the prior incident, a girl fell from the platform when it collapsed and that at the time of the plaintiff’s fall it had not yet been properly repaired.
8 The plaintiff was then taken by ambulance to the Monash Emergency Department.
The claim
9 The plaintiff seeks damages alleging negligence and breach of Consumer Law.
The hearing
10 The hearing commenced before me on 24 September 2018 and continued on 25, 26 and 27 September and on 1, 2 and 3 October 2018.
11 Mr J Mighell QC appeared with Mr P Lamb on behalf of the plaintiff. Ms R Annesley QC appeared with Ms R Kaye on behalf of the defendant.
12 On 25 September 2018, a view was conducted of Xanadu. The defendant no longer operated Xanadu. The view was video recorded. The video recording was tendered as exhibit 3. In addition, a member of the transcribing company attended and made an independent audio recording of the view. That recording was transcribed. The transcript of the view was taken out and provided to the parties as part of the overall transcript of the proceedings.
The issues to be determined
13 On the first day of the hearing, the defendant abandoned reliance on the claim of contributory negligence against the plaintiff. Before the plaintiff’s case closed, the defendant admitted liability in both negligence and under Consumer Law, leaving the assessment of damages as the only issue to be determined.
14 The defendant accepts that the plaintiff suffered injury as a result of the accident but contends that the plaintiff is not a credible witness. The defendant submits that the plaintiff has exaggerated the nature and extent of his injuries. Accordingly, the defendant submits that the award of damages should be moderated.
15 The issue is – in what amount should the plaintiff’s damages be assessed?[5] In order to answer this question, the following questions of fact must be resolved:
[5]The parties did not distinguish between damages awarded in negligence and damages awarded under Consumer Law. No submissions were made in this regard. The case was conducted as if damages were to be awarded in negligence.
(a)Is the plaintiff a credible witness?
(b)What is the nature and extent of the plaintiff’s injuries?
(c)What are the consequences of the plaintiff’s injuries in terms of pain and suffering, loss of enjoyment of life, past and future economic loss, past and future medical and like expenses and past gratuitous care? The answers to these questions will inform the quantification of damages in respect of:
(i)pain and suffering damages;
(ii)past loss of earnings;
(iii)future loss of earning capacity;
(iv)past medical and like expenses;
(v)future medical and like expenses; and
(vi)past gratuitous care.
Overview of the Plaintiff’s case
16 Counsel for the plaintiff contended that as a consequence of the defendant’s negligence and breach of statutory duty under Consumer Law, the plaintiff has suffered permanent physical and psychiatric injuries. He has sustained organic injury to three parts of his spine – the neck, the thoracic spine and the lumbar spine. As a consequence, he is in constant pain and his movements are restricted. He has also suffered soft tissue injury. He has lost the capacity to work. He has suffered, and will continue to suffer, a loss of enjoyment of life. He also suffers from an Adjustment Disorder with Anxious and Depressed Mood and with features of traumatisation. He will require treatment, medication and support for the rest of his life.
17 In all the circumstances, counsel for the plaintiff proposed that damages be awarded as follows:
Damages Amount Pain and suffering
$250,000 - $300,000
Loss of earnings (past) (including loss of superannuation)
$262,000 - $269,455
Loss of earning capacity (future) (including loss of superannuation)
$782,758 - $928,110
Medical and like expenses (past) (AGREED)
$7,146
Medical and like expenses (future) ($7,170.75 + $35,157.15 + $8,365.88 + $11,951.25 = $62,645.03 less between 20% and 25%)
$46,984 - $50,116
Gratuitous care (past only)
$53,097
TOTAL
$1,401,985 - $1,607,924
Overview of the Defendant’s case
18 As mentioned, the defendant submitted that the plaintiff was not a credible witness. It was suggested that he exaggerated the extent to which his injuries affected his enjoyment of life and his capacity for employment. Counsel argued that the plaintiff was compensation focussed and that his “performance” was actuated by a desire to maximise the amount to be awarded for damages.[6]
[6]T117-118
19 The defendant argued that the plaintiff’s past economic loss was not as bad as portrayed and that the future economic loss was not as bleak as suggested.
20 In all the circumstances, counsel for the defendant proposed that damages be awarded as follows:
Damages
Amount
Pain and suffering
$100,000 - $150,000
Loss of earnings (past) (including loss of superannuation)
$189,259
Loss of earning capacity (future) (including loss of superannuation) (after deduction of 25%)
$149,331
Medical and like expenses (past) (AGREED)
$7,146
Medical and like expenses (future) ($3,334 + $2,858 less 25%)
$4,644
Gardening (past)
-
Gardening (future) ($4,764 less 25%)
$3,573
Gratuitous care (past only)
$7,437
TOTAL
$461,390 - $511,390
Summary of findings
21 For the reasons explained in this Judgment, I am satisfied, on the balance of probabilities, that –
(a) the plaintiff was a credible witness;
(b) as a result of the defendant’s negligence [and/or breach of duty under Consumer Law], the plaintiff suffered the injuries as alleged, namely (in summary):
· Injury to the spine
§ aggravation of cervical, thoracic and lumbar spondylosis;
§ an annular tear at C6-7;
§ a central posterior disc extrusion rupturing out at the back at L4‑5 level, contacting and compressing the L5 nerve roots at L5;
§ compression of the S1 nerve root;
§ soft tissue injury and chronic spinal pain with radiating features affecting the cervical, thoracic and lumbar spine;
· Injury to the left shoulder
§ Soft tissue injury
· Psychiatric injury
§ Adjustment Disorder with Anxious and Depressed Mood;
(c) as a consequence of his injuries, the plaintiff has suffered ongoing constant pain, the degree and intensity of which fluctuates. He has suffered, and will continue to suffer, a loss of enjoyment of life. His income earning capacity has been destroyed. He will require medical treatment and incur associated costs and expenses most likely for the rest of his life.
22 Accordingly, I assess the plaintiff’s damages as follows:
Damages
Amount
Pain and suffering
$265,000.00
Loss of earnings (past) (including loss of superannuation)
$270,684.40
Loss of earning capacity (future) (including loss of superannuation)
$782,758.00
Medical and like expenses (past) (AGREED)
$7,146.00
Medical and like expenses (future)
$11,652.47
Gardening assistance
$8,963.43
Gratuitous care (past only)
$26,029.50
TOTAL
$1,372,233.80
The Plaintiff’s case
23 The following witnesses were called by the plaintiff to give viva voce evidence:
· The plaintiff, Abdul Qayom[7]
[7]T28-40; 42-94; 95-162
· Dr Joseph Slesenger, occupational physician[8]
[8]T165-197
· Rocky Vinci[9]
[9]T199-218
· Fouzia Qayom, the plaintiff’s wife[10]
· Dr Nathan Serry, consultant psychiatrist;[11] and
· Professor Richard Garth Bittar, consultant neurosurgeon.[12]
[10]T218-239
[11]T243-281
[12]T286-325
24 The plaintiff tendered the following exhibits:
Number and Identifying Mark on Exhibit Short Description of Exhibit
Date Tendered
A1 Photograph of a purple tube with a sign showing playground rules
25 September 2018
A2 Photograph of the soft stairs and the play equipment with four signs above
25 September 2018
A3REMOVED FROM EXHIBITS
FOR IDENTIFICATION ONLY
Photograph of the Conditions of Entry sign in front of the slides
25 September 2018B Photographs at pages 111 and 142 of Plaintiff’s Court Book
– platform from which the plaintiff fell25 September 2018
C Photographs at page 112 - 114 of Plaintiff’s Court Book
– platform from which the plaintiff fell, repaired25 September 2018
D Photographs marked 1, 2 and 3 depicting the underside of the step in its current state
25 September 2018
E Medical Attendant’s Statement dated 22 January 2016
26 September 2018 F
Email chain commencing on 28 November 2014 from Ms Kate Dickinson to the plaintiff and concluding on 2 December 2014 with an email from Ms Kate Dickinson to adam@[email address of insurance representative].com.au
26 September 2018 G
Report from Dr Brij Kishore, consultant psychiatrist, dated 25 November 2016
26 September 2018 H Clinical notes from Monash Medical Centre
26 September 2018
J1 Letter from Shakthi Sri, physiotherapist, to Dr Mirranay dated 24 April 2015
26 September 2018
J2
Letter from Shakthi Sri, physiotherapist, to Dr Mirranay dated 5 March 2015 26 September 2018 K Report of Dr Slesenger dated 4 April 2018
26 September 2018
L
Dr Serry report dated 28 March 2018 1 October 2018
M Clinical notes of Dr Mirranay as at 12 September 2018
1 October 2018
N1 Letter from Dr Mirranay dated 9 March 2016 - pages 96-98 of the Plaintiff’s Court Book
1 October 2018
N2 Letter from Dr Mirranay dated 21 September 2018 - pages 98A-98B of the Plaintiff’s Court Book
1 October 2018
O Report of Mr Flanc dated 27 October 2016 - pages 42-56 of the Plaintiff’s Court Book
1 October 2018
P1 Report of Mr Timms to Dr Mirranay dated 17 February 2015
1 October 2018
P2 Report of Mr Timms to Dr Mirranay dated 15 December 2016 - page 99 of the Plaintiff’s Court Book
1 October 2018
Q1 Report of Dr Rowe dated 31 October 2017 - pages 100-105 of the Plaintiff’s Court Book
1 October 2018
Q2 Report of Dr Rowe dated 30 August 2018 - pages 106-107 of the Plaintiff’s Court Book
1 October 2018
R Bundle of medical certificates signed by Dr Mirranay
1 October 2018
S1 Report of Professor Bittar dated 23 September 2017 - pages 57-62 of the Plaintiff’s Court Book
1 October 2018
S2 Report of Professor Bittar dated 23 August 2018 - pages 63-69 of the Plaintiff’s Court Book
1 October 2018
T USB containing video recording of the view conducted on 25 September 2018
2 October 2018 U Plaintiff’s Outline of Submissions 3 October 2018
V Plaintiff’s further updated particulars of special damages
3 October 2018
The viva voce evidence called on behalf of the Plaintiff
The Plaintiff, Abdul Qayom[13]
Evidence-in-chief
[13]T28-40; T42-94; T95-162
Background
25 The plaintiff was born in January 1979 and at the date of trial was aged thirty-nine years. He was born in Ghazni, Afghanistan.
26 The plaintiff was educated at a religious school until he was aged about fourteen or fifteen years and thereafter, he worked helping his father on a farm.
27 In 2000, the plaintiff fled Afghanistan, afraid that his life was in danger because of the Taliban. The plaintiff left Afghanistan with his uncle and headed for Pakistan. The plaintiff remained there for a few weeks, before coming alone to Australia by boat.
28 Upon his arrival in Australia, the plaintiff was interned in a refugee camp or detention centre in the Northern Territory, where he spent about eight or nine months. He obtained refugee status and was released. He then travelled to Melbourne. When he arrived in Melbourne, the plaintiff knew nobody and he spoke no English. He made friends and after a few months he obtained work at a fibreglass factory in Mordialloc. The plaintiff was then living in Dandenong.
29 The plaintiff remained at work in this factory for approximately two to three years. He then obtained employment as a spray painter, despite having no experience in that field. The plaintiff obtained on-the-job training. He remained in that job for about one to one-and-a-half years.
30 In 2004, the plaintiff commenced work with DMG Venture[14] in Keysborough. At first he was engaged as a paint mixer, a job he performed for the first eight to twelve months. After displaying aptitude and a willingness to learn, the plaintiff was offered to be trained in the role of robot technician, a position he accepted. The plaintiff was given training on the job. Five robots were used to spray-paint car parts, and when the plaintiff was working his shifts, he was responsible for all of them. The plaintiff’s duties included operating the robots, maintaining them and fixing any problems that arose. His duties involved heavy manual labour.
[14]The name of the business changed during the plaintiff’s period of employment, but noting turns on that.
31 The plaintiff usually worked the afternoon shift from 3.00pm to 11.00pm but sometimes he performed overtime if other shift workers were unavailable. In those situations, the plaintiff worked a twelve-hour shift from 3.00pm to 3.00am. The plaintiff worked six days a week. Although the hours were long, the plaintiff enjoyed his work. The plaintiff’s supervisor was Rocky Vinci.
32 In 2005, the plaintiff obtained permanent residency. He married Fouzia in 2008. Their first daughter, Hoorain, was born in 2009. Their second daughter, Hani, was born in 2013.
33 In 2011, together with his wife, the plaintiff purchased a house in Hallam. They took out a mortgage to finance the purchase.
The incident
34 On 23 November 2014, the plaintiff took his wife and two daughters to Xanadu. He had never been there before. At about 4.30pm, the family entered the premises. At the front counter, the plaintiff paid for his wife and children to enter. I have earlier described the layout of the premises. The plaintiff and his wife placed the youngest daughter inside a netted area dedicated for toddlers. They remained in the vicinity of that area, keeping an eye on their youngest child, Hani. Meanwhile, the oldest daughter, Hoorain, went to play on the other equipment. She climbed the padded stairs and headed for the tunnels.
35 After a while the plaintiff could hear Hoorain crying. She had apparently become stuck in one of the tunnels. The plaintiff went to the front counter to seek the assistance of staff but seeing they were busy, and, noticing a sign requiring parents to be responsible for their children, he went to rescue his daughter.
36 The plaintiff climbed the padded stairs and after reaching the top, he arrived at a padded walkway. From there, he had to step down approximately half a metre onto a step or platform, which suddenly collapsed underneath him. The plaintiff fell approximately 3.5 metres, landing on the concrete floor below.[15]
[15]Exhibit B depicts the collapsed step hanging from the walkway after the plaintiff’s fall
37 The plaintiff landed on his left side. He felt immediate pain to the whole of his body but, in particular to his lower and upper back and to his left shoulder.
38 Soon after the plaintiff fell, members of staff attended, as did the plaintiff’s wife. A female member of staff apologised to the plaintiff, saying:
“Sorry about this. Actually, we told the owner to fix it and unfortunately he didn’t and I’m so sorry about that, about you fell.”[16]
[16]T40
39 The staff member also mentioned that the day before, another person had fallen from the same platform, which had broken, and that the owner had failed to fix it properly.[17]
[17]T40
40 The plaintiff was in extreme pain. An ambulance was called. He was taken by ambulance to the Monash Hospital.
41 At the hospital, the plaintiff was given medication, and x-rays were taken. He was admitted and spent one night there.
42 On 28 November 2014, the plaintiff then came under the care of his general practitioner, Dr Mirranay.
Aftermath of the incident
43 Within a few days of the accident, a representative of the defendant, Kate (Katherine[18]) Dickinson, telephoned the plaintiff:
“She called me and she say she apologised for this, she’s sorry about this, you fell – you had an accident in our place and I’m sorry about this, there was actually broken before and I told my husband to fix it and he put a few screws, he thought it was going to be okay, and we also was waiting for technician to come and fix it.”[19]
(sic).
[18]In her evidence, Mrs Dickinson stated that she is generally known as Kate – T333
[19]T43
44 Following the initial telephone call, there was an exchange of emails between the plaintiff and Mrs Dickinson about making an insurance claim.
45 The plaintiff’s treatment initially consisted of taking prescribed pain-relieving medication, including Mobic and Endone.
46 In December 2014, Dr Mirranay sent the plaintiff for MRI scans as the plaintiff continued to suffer pain in his lower and upper back. In February 2015, the plaintiff was referred to Mr Craig Timms, neurosurgeon.
47 With the exception of one brief period, Dr Mirranay, continued to issue medical certificates certifying the plaintiff as unfit to return to work.
48 In April 2015, the plaintiff was referred to the Caulfield Pain Management Centre where he attended for approximately six to twelve months, sometimes on a fortnightly and sometimes on a monthly basis. At the Pain Management Centre, the plaintiff had the assistance of a physiotherapist and a doctor, as well as a psychologist or psychiatrist. He was shown how to cope with his pain and he was given exercises, although none of them eradicated his pain. The plaintiff still required rest and medication.
49 Because of his ongoing pain and inability to work, the plaintiff felt stressed and depressed:
“… I have a lot of problems … after this fell because I have a pain and I have family life has been disturbed, I don’t have any job, no income and also I can’t give quality time to my family, to my kids and because of it I’m always in stress and depressed and also most of the night I can’t even sleep because of this.”[20]
(sic).
[20]T44
50 In April 2015, the plaintiff made an unsuccessful attempt to return to work at DMG Venture, performing modified light duties; however, the pain was too much for him to bear. Because the plaintiff could not perform the duties inherent in his position, his employer ordered him to go home. On 23 April 2015, the plaintiff’s employment was terminated. He has not returned to any form of employment since then.
51 In 2016, the plaintiff was referred back to Mr Timms, who ordered a further MRI scan. Mr Timms advised that the plaintiff should undergo conservative treatment. No surgical intervention was proposed. The plaintiff has subsequently had further scans and has remained under the care of Dr Mirranay.
52 The plaintiff has had some physiotherapy and hydrotherapy treatments, which he paid for himself. He stopped physiotherapy about a year before the trial. He continues to have hydrotherapy on a weekly basis, and, every second day at home, for approximately one hour, the plaintiff soaks in a hot bath containing salts.
53 As at the date of trial, the plaintiff was taking a number of medications, including Targin, 10 milligrams twice a day; Lyrica, 75 milligrams twice a day, and Duloxetine, 60 milligrams in the morning and 30 milligrams at night. In addition to these prescribed medications, the plaintiff tops up his pain-relieving medication regime with Nurofen or Paracetamol.
54 The plaintiff testified that as at the date of trial he was still experiencing pain in his lower back which radiates to both his legs, pain in his upper back which travels to his neck and head, and he also has left shoulder pain which extends to his whole chest.
55 The plaintiff finds it very difficult to sit on a chair or sofa for prolonged periods. Most of the time he prefers to sit on a dining room chair but if he is in extreme pain, he cannot sit for more than ten or twenty minutes. When he experiences pain at his regular level or less, he can tolerate sitting for twenty to twenty-five minutes.
56 The plaintiff’s tolerance for standing also depends on the intensity of his pain. When in more pain, he can stand for ten to fifteen minutes. If his pain is less severe, he can stand for about twenty to twenty-five minutes, then he has to move.
57 The plaintiff’s life has altered considerably since the accident. Whereas before he was able to work full time and lead an active physical, family and social life, he now spends most days resting at home. He lies down on the wooden floor every day, usually for twenty to twenty-five minutes, but when his pain is quite bad, he may spend up to an hour on the floor.
58 The plaintiff’s limited tolerance for sitting inhibits his capacity to drive an automatic car, which he can do for between ten to twenty minutes, depending on the level of his pain. Many physical movements affect the plaintiff’s pain. Bending his lower back has a pulling effect and this causes him pain.
59 Following the accident and because of the pain and his inability to work, the plaintiff continues to worry about his family. He does not enjoy his life as he used to. He thinks about the accident “all the time”[21] and he has developed a fear of being in high places. At night, the plaintiff worries about his situation and sometimes he has flashbacks or dreams about the incident. The flashbacks are about falling. The plaintiff explained why he is depressed:
“… because I cannot give that quality time to my family, that time, and also I’m worried about myself about my health because the most important thing I lose, which is the health. And also I have a financial problem because I cannot give things to my kids, to my family, what I was giving before. I was working for my family, for my - everything. But I can’t do those - or everything and that really worries me.”[22]
[21]T48
[22]T49
60 The plaintiff also complains of forgetfulness and an inability to concentrate. The plaintiff’s physical and mental state have affected his relationship with his wife which was previously very good. He becomes excitable and fights with his wife because of tension and his depression. Despite this, the relationship is strong.
61 The plaintiff’s social life has suffered because of his injuries and its effects. He used to lead an active social life, going out with friends to the park, for barbecues, and to pubs. Previously, he frequently visited his friends and he also entertained his friends at his home. Now, he only socialises occasionally when he has less pain but even then his activities are restricted.
62 The accident has had a devastating impact on the plaintiff’s earning capacity. He previously enjoyed his employment at DMG Venture. That business has since closed down. Had he not been injured, the plaintiff would have looked for other work after DMG Venture ceased operations.
63 The plaintiff has limited transferrable skills: He has never done office work; he has limited ability to use a computer; his English is not that good. In fact he has never had any formal training in English. The plaintiff can speak Pashto, Persian, Urdu and, of course, English.
64 Had the accident not occurred, the plaintiff would have continued to work until retirement:
“I love to work. I love work. You see my history. I always work, six to seven days, 12 hours, 10 hours. I would do until I retired.”[23]
[23]T51
65 The plaintiff explained that but for the accident, he would have worked until the statutory retirement age [sixty-seven years].[24]
[24]T51
66 The plaintiff had planned to send his daughters to a private school and it was for this reason he was working such long hours. He was hoping to provide a better future for them but that has become an impossible dream as a consequence of the accident.
67 Before the accident, the plaintiff enjoyed gardening, but now he cannot do it. He pays a gardener to mow the lawns and trim the trees, tasks he used to undertake before his injuries.
68 Ever since the accident, the plaintiff has relied heavily on his wife to provide care for him and for the family. Mrs Qayom has assumed even more of the responsibility for the majority of the household tasks: she does the shopping, laundry, washes the dishes, house cleaning, cooking, and caring for the children.
69 In addition to taking on a greater burden of the domestic chores, Mrs Qayom has also taken on the task of helping the plaintiff with his daily needs. The plaintiff was unable to calculate the precise number of hours per week that his wife provided gratuitous care –
“I didn’t count how many hours, to be honest with you, but she’s all the time there for me and when I’m in pain and those things she give me medicine, medication, and she cook for me, she washing clothes for me. Everything she does for me.
…
I cannot estimate the hours, how many hours, but she’s like I’m saying, all the time whenever I need her she’s there for me.”[25]
[25]T53
70 Since the accident, the plaintiff has never been free from pain. The level of pain varies and can be aggravated by physical activities. When it is bad, the pain is between 7 to 9 on of a scale of 1 to 10 (where 10 is the worst level of pain) but it is otherwise at approximately 4, 5 or 6 out of 10. When the pain is bad, it is –
“… [v]ery bad. I cannot walk, I cannot enjoy my life. The pain is very bad. Cannot say which words – what I say. Is very bad.”[26]
[26]T53
71 Approximately one week after the incident, in the hope of obtaining evidence about the circumstances of the accident, the plaintiff returned to Xanadu and spoke to two members of staff. He video recorded the conversation.[27]
[27]Exhibit 3
Cross-examination
72 The plaintiff agreed that when he heard his daughter crying out from within the tunnel he moved quickly towards her, although he denied running.[28] He did not think that he jumped from the walkway onto the platform.[29]
[28]T59
[29]T60-62
73 It was suggested to the plaintiff that there had been no previous incident involving the collapse of that particular platform and that staff never told the plaintiff that there had been. The plaintiff maintained that he was told by staff of the incident the day before:
“I’m a hundred per cent sure. I can’t forget these words.
… They told me when the staffs come in and they told me, ‘I’m so sorry. We told owner to fix it. Yesterday someone fell from the same place, same platform, yesterday.’”[30]
[30]T63; T67-68
74 When it was again suggested to the plaintiff that he had not been told by staff that the incident the previous day involved the platform collapsing, the plaintiff referred to the telephone call between himself and the owner, Mrs Dickinson:
“No, they told me the platform has been collapsed. And also the owner when she called me, she told me the same thing, ‘The platform was collapsed and was broken. My husband want’ – ‘tried to fix it. He put a few screws and we was also waiting for technician to come and fix it.’ That’s the owner also told me, plus the staff.
… The staff told me the same day, same time, and - to me and my wife. And the owner when she called me after couple of days, she told me that.”[31]
[31]T64-65
75 It was suggested to the plaintiff that he did not land directly on the concrete floor. The plaintiff denied that his fall was broken by a foam covered table.[32] He could not recall telling ambulance officers that he landed on foam covered furniture.[33]
[32]T66; T68-69; T70-71
[33]Cf exhibit 2, ambulance records dated 23 November 2014
76 The plaintiff did not know why the ambulance records noted right-sided pain when the plaintiff landed on his left side.[34] The plaintiff explained that immediately after the fall, he felt pain all over his body.[35]
[34]T72-73
[35]T74-76
77 The plaintiff denied the suggestion that, as a consequence of the incident, he suffered only minor back pain:
“Not minor like I said for a few days I have pain everywhere. Like I say I have a bruise and a pain everywhere and then later on when I go to the – the pain was reducing from other places of my body and the back pain, lower back, upper back and the shoulder pain is left and I was worried about these things and so that’s why I just told my GP and then I have a pain in these places, can you please see why these things paining and then … [he] send me for MRI.”[36]
[36]T77-78
78 The plaintiff agreed that the x-rays taken after the accident showed no fractures. He was unsure whether the hospital’s discharge notes recorded that he had a full range of movement in his shoulders and lower limbs at the time of discharge.[37]
[37]T78-79
79 Upon discharge from hospital, the plaintiff was advised to go to his general practitioner.[38] The plaintiff agreed that prior to the accident, he regularly attended the St Mina Medical Centre in Hallam yet, after the accident, he started seeing Dr Mirranay at another clinic. He denied that he was “doctor shopping”. The plaintiff testified that Dr Mirranay was able to communicate with the plaintiff in his own language and this made it easier for the plaintiff to discuss his concerns and treatment with his doctor.[39]
[38]T80
[39]T80-89; T126
80 A theme pressed in cross-examination was that the plaintiff was focussed on compensation and that he had determined to make a claim against the defendant very soon after the accident. The plaintiff agreed that he asked Mrs Dickinson for financial assistance but that was only after Mrs Dickinson telephoned him to admit liability and to offer him help in making a claim on Xanadu’s insurance policy. He testified:
“Just they told me – the defendant, when she called me after a few days and she told me that, ‘Sorry, it’s our fault. We apologise for this thing but we going help you for your wages and everything. You just send me email and we will pay you this everything,’ and she told me – and I didn’t understand. To be honest with you, I didn’t know what I should write and the defendant, she explained me what to write. Even she help me with the spelling as well, what I should write to her, email to her, and then she will pay this, everything, from the (indistinct).”[40]
[40]T89
81 The plaintiff decided to make a claim for compensation when he was in pain and discovered that he had a bulged disc. Initially his preference was simply to return to work; however, Mrs Dickinson offered to pay his wages for the period he was off work.[41]
[41]T90
82 The plaintiff agreed that approximately a week after the incident, he returned to Xanadu, where he video recorded a conversation with staff on his mobile telephone. He explained that he did so on the advice of friends.[42] The recording was copied onto a disc, which was tendered as exhibit 3. The recording is not clear in parts, but the parties have agreed that the following transcript accurately reflects the conversation:[43]
[42]T92-93; T105; T162
[43]The revised transcript was produced as a result of joint effort.
TRANSCRIPT OF VIDEO RECORDING MADE BY PLAINTIFF
PLAINTIFF: (indistinct – foreign language)
[sound of ringing bell at front counter]
(foreign language)
(KIRSTEN ANDREW[44] arrives at counter)
[44]Mrs Dickinson identified the member of staff seen on the video as Kirsten Andrew – T342
KIRSTEN ANDREW: Hello. How are you going?
PLAINTIFF: Hello. How are you?
KIRSTEN ANDREW: Good, thank you.
PLAINTIFF: Actually, I am the one that falled (sic) down last week from here.
KIRSTEN ANDREW: Yes.
PLAINTIFF: Yeah. Actually just want to pick up my shoes. I forget my shoes here.
KIRSTEN ANDREW: What shoes were they?
PLAINTIFF: There was some shoes ‑ ‑ ‑
KIRSTEN ANDREW: Were they sandals?
PLAINTIFF: Yeah.
KIRSTEN ANDREW: Yeah. [Produces shoes] Are these the ones?
PLAINTIFF: Yeah, that’s the one. Yeah.
KIRSTEN ANDREW: There you go.
PLAINTIFF: Thank you.
KIRSTEN ANDREW: How is it all going?
PLAINTIFF: I still have a lot of pain and a lot of things, yeah, you know.
KIRSTEN ANDREW: Yeah.
PLAINTIFF: Bruises, a lot of - I don’t know it’s difficult‑ ‑ ‑
(UNIDENTIFIED FEMALE): Yeah.
PLAINTIFF: They fix this one? - hello, how are you?
ATTENDANT 2: Good.
PLAINTIFF: You all right?
ATTENDANT 2: How are you?
PLAINTIFF: Yeah, still having a lot of pain, a lot of (indistinct) my neck, all those things. Yeah. So it’s still not all right.
KIRSTEN ANDREW: Yeah.
PLAINTIFF: But, you know.
KIRSTEN ANDREW: Has Brad or Kate[45] been in contact with you?
[45]The owner of the business, Katherine Dickinson, is also known as Kate
PLAINTIFF: Yeah. Yeah, she did.
KIRSTEN ANDREW: Yeah. Good.
PLAINTIFF: Yeah, she did, and she had contact with me, and they fix this one?
KIRSTEN ANDREW: Yeah, it’s all been fixed now.
PLAINTIFF: That’s good. That’s good.
MRS QAYOM: The other girl, they have – brain tumor (indistinct)
PLAINTIFF: Yeah, yeah.
(UNIDENTIFIED FEMALE): She’s fine. She
KIRSTEN ANDREW: All right. Yeah, she’s fine as well.
PLAINTIFF: That’s good.
KIRSTEN ANDREW: They’ve been in contact with them as well back with them as well.
PLAINTIFF: That’s good. That’s good, yeah. Yeah, [to unidentified attendant 2] because you told me you nearly fall down from there also.
ATTENDANT 2: Yes.
PLAINTIFF: Yeah. You or that other lady, yeah.
ATTENDANT 2: (indistinct)
PLAINTIFF: They say that was broken from before, someone come and (indistinct) and they break down ‑ ‑ ‑
KIRSTEN ANDREW: (indistinct)
PLAINTIFF: (indistinct) I don’t know (indistinct) so it already has been fixed now?
KIRSTEN ANDREW: Yeah, it’s definitely been fixed.
PLAINTIFF: Okay. So that was broken before. How long before that was broken?
KIRSTEN ANDREW: The day before.
PLAINTIFF: The day before.
KIRSTEN ANDREW: Yeah. It was fixed up but my boss was away and by the time you fell through he didn’t get back to fix it properly – put some brackets (?) in there that night the little girl fell through, you fell through on Sunday, yeah?
PLAINTIFF: Yeah, I did.
KIRSTEN ANDREW: Yeah. The little girl fell through on Saturday and he came back on Saturday night to fix it - - -
PLAINTIFF: Okay.
KIRSTEN ANDREW: - - - and he was supposed to come back sometime Sunday to fix it up properly (indistinct) but he fixed it up (indistinct)
PLAINTIFF: So before me someone else (indistinct) was dropped, fell down also?
KIRSTEN ANDREW: Yeah, the little girl the day before.
PLAINTIFF: The sign, lucky there was any kids or any children if they fall down (indistinct)
KIRSTEN ANDREW: But the child is fine now. So we’ve been in contact with them as well. The child is fine.
PLAINTIFF: Okay. They should fix before that, yeah, you know.
KIRSTEN ANDREW: Yeah.
PLAINTIFF: Because I have a lot of injuries on my back, on my left hand, on my ‑ ‑ ‑
KIRSTEN ANDREW: Brad and Kate are the best ones to speak about that.
PLAINTIFF: Are you the manager? Okay.
KIRSTEN ANDREW: (indistinct)
PLAINTIFF: Yeah. No, no, they speak to me already. I just come to this shop. I said I’ll pick up my shoes from here.
KIRSTEN ANDREW: Yeah.
PLAINTIFF: Yeah. Yeah, so. That’s - so you was here on Sunday, or, no, you wasn’t here?
KIRSTEN ANDREW: No, that was my sister, she looks exactly like me.
PLAINTIFF: That’s why I say it was lucky, yeah.
KIRSTEN ANDREW: (indistinct)
PLAINTIFF: (indistinct) she was sharing (?) or something, because she had a brain operation.
KIRSTEN ANDREW: Sorry?
PLAINTIFF: That girl is the one that had a brain operation. Kate told me she had a brain tumour or something.
KIRSTEN ANDREW: (indistinct)
PLAINTIFF: Kate. Kate (indistinct)
KIRSTEN ANDREW: (indistinct)
PLAINTIFF: The girl that was - had operation or something.
KIRSTEN ANDREW: The little girl
PLAINTIFF: No, no, no, the ‑ ‑ ‑
(UNIDENTIFIED FEMALE): (indistinct) girl.
PLAINTIFF: The one was working here before.
(UNIDENTIFIED FEMALE): (indistinct)
PLAINTIFF: All right then. That’s good. As long as they fix this right because maybe because it’s very, very dangerous for the kids, you know.
KIRSTEN ANDREW: Yes, no (indistinct) we’ve all been (indistinct)
PLAINTIFF: So somebody complain about that before, it was broken or something to the corner?
KIRSTEN ANDREW: Nobody (indistinct) it was broken.
PLAINTIFF: Okay.
KIRSTEN ANDREW: Yeah, yeah.
PLAINTIFF: Okay.
(UNIDENTIFIED FEMALE): Yeah.
PLAINTIFF: No, no, the day before the - - -
KIRSTEN ANDREW: (indistinct) I wasn’t here, I’ve only [heard about it (?)] but as far as I’m aware the parents were fine about it.
PLAINTIFF: Okay.
KIRSTEN ANDREW: Yeah.
PLAINTIFF: Okay. Okay. Okay, no worries. Hello.
KIRSTEN ANDREW: (indistinct)
PLAINTIFF: Okay. Thank you very much.
KIRSTEN ANDREW: No worries.
PLAINTIFF: Thank you.
KIRSTEN ANDREW: You have a good weekend.
PLAINTIFF: You too. I have a lot of (time (?)/(pain?), a lot of things, you know. I will, that’s right. Enjoy.
KIRSTEN ANDREW: Yes.
PLAINTIFF: All right. Thank you very much. Thank you. Thanks for your help the other day, you really helped me a lot and (indistinct)
KIRSTEN ANDREW: No.
PLAINTIFF: Thank you very much for that.
KIRSTEN ANDREW: You’re welcome.
PLAINTIFF: I appreciate it.
KIRSTEN ANDREW: Hope (indistinct)
PLAINTIFF: Okay. No worries. Thank you. See ya (indistinct – foreign language outside the Play Centre)
MRS QAYOM: (indistinct - foreign language)
PLAINTIFF: (indistinct – foreign language)
MRS QAYOM: Okay.
PLAINTIFF: (indistinct) I am just making this really because of that, to confirm that it was broken from before, so the girl say already this, so I have evidence for this that it was already broken before, day before I fall down.
- END OF RECORDING -
83 It was suggested that in his evidence-in-chief, the plaintiff had failed to mention that a member of Xanadu’s staff had told him that she had nearly fallen from the same platform, and that this proved he was lying because the video records the attendant denying the conversation.[46] I did not hear any such denial. I heard:
[46]T95-100
PLAINTIFF: That’s good. That’s good, yeah. Yeah, [to unidentified attendant 2] because you told me you nearly fall down from there also.
ATTENDANT 2: Yes.
PLAINTIFF: Yeah. You or that other lady, yeah.
ATTENDANT 2: (indistinct).
84 Even if I am wrong about what can be heard on the disc, the plaintiff seemed unsure whether it was attendant 2 or “another lady” who said she had nearly fallen. I consider the failure to mention this part of the conversation while giving evidence-in-chief is of little moment.
85 It was suggested that when making the video recording, the plaintiff exaggerated his pain, in effect acting for the benefit of the camera. The plaintiff denied the suggestion, maintaining that in fact he was in pain at the time he made the recording.[47] It must be remembered that the plaintiff was holding the camera when making his recording. He is not really seen in the video.
[47]T104-105
86 It was also put to the plaintiff that he was focussed on getting compensation from the defendant. It was suggested that this objective was apparent from the plaintiff’s conduct, which included making his video recording only a week after the incident[48] and asking Mrs Dickinson for financial assistance before receiving any formal diagnosis of his condition.[49] The plaintiff explained that he made the recording to obtain evidence confirming what he had been told, namely, that the platform had been broken the day before the incident and that it had not been fixed properly. He explained that he requested financial assistance from Mrs Dickinson because she offered it when she informed the plaintiff that she had insurance to cover this type of event:
“She told me to email me, she speak to me about these things, and she told me, ‘You send me that email. If there is anything happen, it will take time, by the time we pay.’ And then she called me a couple of times again to email me. I told her I don’t know what I should write. She tell me this, everything to, ‘Write down and send me. If there is anything happen, we will pay you. If there is anything happen.’”[50]
[48]T105-106
[49]T106-117
[50]T107-108. See also T110
87 The plaintiff confirmed that it was Mrs Dickinson who stated that she would make a claim against her insurance company.[51] She also explained what to write and gave assistance with spelling so that the information could be passed on.[52]
[51]T111
[52]T112
88 A series of text messages exchanged between Mrs Dickinson and the plaintiff and emails passing between the two of them were tendered as exhibits 6 and F respectively. It is convenient to refer to those communications in chronological order:
89 On 28 November 2014, Mrs Dickinson wrote to the plaintiff:
“Hi Abdul & Fougia
We are so saddened by the news that you you had an incident
at our playcentre. we sincerely hope you have a speedy recovery.
our thoughts and prayers are with you & your family at this time.
I can only prey we cause you little stress and a speedy claim.
our insurance company
seers insurance
[name and telephone number provided]
Kind regards
Kate
[mobile telephone number provided].”
(sic).
90 On approximately 28 November 2014, Mrs Dickinson sent a text message to the plaintiff:
“Hi Abdul
Just letting you know I have sent a letter to you from my personal email [Mrs Dickinson’s email address provided]
Just text back with the demand letter & I will forward it on to Sears insurance today. Hopefully we get a reply back by early next week
Good luck Abdul and my prayers are with you!
Kind regards
Kate.”
(sic).
91 The plaintiff responded:
“Thanks for preyers I will [emoji] send you the demand later [scil. letter] today
have a good weekend
[emoji].”
(sic).
92 Mrs Dickinson responded:
“Thank you!’
[emoji].”
93 Mrs Dickinson sent a subsequent text message:
“Did you get email :).”
94 The plaintiff then sent two text messages:
“Yes I got email [emoji]
thanks.”
and:
“Tonight I send u demand later.”
(sic).
95 Two minutes later, Mrs Dickinson responded:
“OK. That’s fine.
Monday is fine :)
Have a great weekend.”
96 On 1 December 2014, the plaintiff emailed his letter of demand to Mrs Dickinson:
“Dear
Kate Dickinson
Owner of xanadu play centre [address provided]
Hi, Kate I just wishing to tell you that happen on Sunday 23/11/2014 time was 4.20pm that I fall from 3.5m above wen playground platform collapsed i fall on the floor. Fell on to left side I have injury’s on my left hand and left leg’knee,neck ,left shoulder , upper spine then they called the ambulance it’s come in 20min they take me to monash emergency I stay one night in hospital it is alleged that I have a very bad back pain which required treatment. This is a demand to xanadu play center we claim compensation for injury and Lose of income and treatment for injury’s on your insurance company thanks
Abdul qayom
[mobile telephone number provided]
[address provided].”
(sic).
97 On 2 December 2014, the plaintiff sent a text message to Mrs Dickinson:
“Hi [emoji] Kate I email you the demand later last night sorry for the delay because I have problem with my laptop [emoji] abdul.”
98 Mrs Dickinson replied:
“Hi Abdul. Still at work.
Will call you tonight or in the morning. Will read email and send off to them tonight. Hope you are feeling a bit better today! Been thinking of you!!!!.”
99 On 2 December 2014, Mrs Dickinson forwarded the plaintiff’s letter of demand to the insurance company:
“Hi Adam.
as requested, we have a demand letter for Abdul Qayom of [address provided].
He had an incident at Xanadu on Sunday 23rd November. Abdul fell from the playground platform that gave way. an ambulance was called and he was sent to Monash hospital emergency where he was admitted as an impatient for one night
and treated for injuries. It is our intention to submit a claim on behalf of Mr Qayom.
his demand letter is as follows
Thank you for your kind advise.
Regards Kate Dickinson
Owner Xanadu Playcentre & Café
[address and telephone numbers provided].”
(sic).
100 Later the same day, Mrs Dickinson sent a further text message to the plaintiff:
“Hi Abdul.
Got your email OK.
I have sent you a reply.
I have also faward your demand to [email address of insurance company].
Hopefully that will satisfy them. They should reply before the week is out!
Kind regards
Kate [emoji].”
(sic).
101 On 17 December 2014, Mrs Dickinson sent a further text message to the plaintiff:
“Hi Abdul.
Hope you are well
Claim is being processed now so will lodge it by Friday to Seers.
Will keep you updated
:)
Take care and wish you wellness :).”
102 On 24 December 2014, the plaintiff sent this text message to Mrs Dickinson:
“Hi hope your well wat happen the insurance company didn’t respond I have no money I spend all my money i need money i have a expanses’ kids mortgage and bills if you give me some money than you can claim form insurance company or I give you back when insurance company give me
Thanks Abdul.”
(sic).
103 Mrs Dickinson replied promptly:
“Hi Abdul
Claim is with insurance company.
Waiting to be processed. Shouldn’t be too much longer I hope. I will give them a call to see where it is at. I know these claims can take a little while.
All the very best for you and your family.
We wish you well!.”
104 Regarding ongoing treatment, the plaintiff agreed that he had not returned to physiotherapy because he did not find it helpful. In fact it aggravated his pain.[53] He did not, however, rule out the possibility of having further physiotherapy if his doctor advised it.[54]
[53]T120
[54]T120-121
105 The plaintiff agreed that the only psychological assistance he had had was early on, through the Caulfield Pain Management Clinic.[55] The plaintiff noted that he had been referred to a psychologist and telephoned to make an appointment but the psychologist was on holidays and did not respond. Because the plaintiff was under the care of his general practitioner and was receiving medication for his psychological or psychiatric conditions, he did not feel it necessary to pursue treatment with the psychologist.[56]
[55]T122
[56]T122-124
106 The plaintiff confirmed his medication regime and testified about the cost of same.[57]
[57]T124-126
107 The plaintiff was challenged about his claimed tolerances for sitting and standing. It was put to him that until invited by me to sit or stand at will, the plaintiff had managed to remain seated for over an hour in court without any apparent discomfort. He explained that he was unfamiliar with court etiquette and remained seated despite being in pain out of respect for court procedure. It was also suggested that when seen by vocational assessors on behalf of the defendant, the plaintiff was also able to sit for longer than his claimed tolerance.[58]
[58]T127-130
108 The plaintiff agreed that in the four years since the incident, he has not applied for any jobs. He disagreed that his English reading and writing skills were good.[59] He added that he had not been offered any adult education courses through Centrelink.[60] The plaintiff disagreed that he would be able to work as a cashier[61] or as a sales assistant at a sales counter or as an usher or ticket collector.[62] It was suggested to the plaintiff that once the Court case is over, the plaintiff would look for work:
[59]T140-144
[60]T143
[61]T144
[62]T145
“No, no. Depend. Depend on my pain. Like as I say before, if doctor suggest to me anything I follow the doctor. And if I have this pain, this anxiety, this stress and this depression, I don’t think so.
…
But it depend. I’m want to bring myself - like myself to in the life, back to track, for future of my kids because this is very important for my kids. I have two little kids. I have to raise them and I have to give them a better education, better future, because I didn’t read - like, today I’m struggling to read and to write. I don’t want my kids suffer these things. I want to give them a better future, better life and go - put them in a better school and to learn better things. That’s my plan. This - that’s - I was - that was my dream from before falling down. So if I have this pain or these things, if I have a chance - if I get better, if I’m okay, yes, if the doctor say, ‘Yeah, you’re okay now. It’s okay, you don’t have any pain,’ I don’t have any stress or any anxiety then I’m happy - more than happy to go. More than happy to go.
…
For future of my kids. For future of my kids.”[63]
[63]T146-147
109 The plaintiff agreed that his wife has never engaged in paid employment. She has been a parent and homemaker who has carried the burden of the majority of the household chores.[64]
[64]T149-152
110 The plaintiff testified that before the incident, he assisted with household duties, gardening and shopping but since the incident, he has been unable to perform these duties to the same extent. Although he assists with shopping, he cannot lift more than 2 to 4 kilograms. He no longer assists much with the cooking or the cleaning and, as mentioned before, he pays for help with gardening.[65]
[65]T153-154
111 The plaintiff was questioned about the ongoing effects he might have suffered as a result of his life in Afghanistan. He agreed that when there, his life was in danger from the Taliban:
“There was like a few weeks. Actually, that happened, so the Taliban used to take everybody from home for the fight, to fight for them, and that’s - everybody is like, ‘I’m scared and stressed, maybe take me, maybe take that one’. That stress we had, until we were in our city in Afghanistan.”[66]
[66]T155-156
112 The plaintiff agreed with the suggestion that because of the political situation, it was stressful living in Afghanistan in the years before he came to Australia. He also agreed that in Afghanistan, he had seen dead bodies on a regular basis, but denied that this caused him to suffer from any mental health issues:
“When I came out from Afghanistan, so after, I was okay.”[67]
[67]T156
Re-examination
113 When re-examined, the plaintiff confirmed that he would be unable to work as a cashier because he cannot constantly stand or sit and this is a requirement of the job,[68] nor could he work in sales. He has never previously worked in sales, and he has never worked in retail or operated a cash register. He would be unable to stack and display goods for sale, or wrap and pack goods if it involved heavy lifting or bending.[69]
Dr Joseph Slesenger, occupational physician[70]
Dr Slesenger’s report dated 4 April 2018[71]
[68]T156
[69]T157
[70]T165-197
[71]Exhibit K
114 Dr Slesenger, specialist occupational physician, assessed the plaintiff on 5 March 2018. On examination, Dr Slesenger noted that the plaintiff conversed in English without requiring an interpreter. His affect was good. Dr Slesenger observed:
“● He sat during the course of the narrative and did not adjust his posture (up to 25 minutes).
● He was able to climb in and out of the chair.
● He was able to climb on and off the couch.
● He was able to dress and undress.
● He was able to manoeuvre from a supine to a prone position and from a seated to a supine position.”[72]
[72]Exhibit K, page 6, Plaintiff’s Court Book 85
115 Dr Slesenger observed that the plaintiff walked slowly with a left-sided limp. Dr Slesenger reported the following results of his examination:
“Chest examination:
●Inspection: revealed no trophic abnormalities on the left anterior chest wall.
…
Cervical spine:
● Inspection: normal
●Palpation: there was tenderness throughout the cervical spine and the paraspinal musculature.
●Range of movements:
o Flexion: 20 degrees.
o Extension: 10 degrees.
o Right rotation: 20 degrees.
o Left rotation: 20 degrees.
o Right lateral tilting: 10 degrees.
o Left lateral tilting: 10 degrees.
Thoracolumbar spine:
●Inspection: revealed no trophic changes, no scarring. There was preservation of the lumbar lordosis.
●Palpation: there was mild tenderness over the lower lumbar spine and severe tenderness over the upper lumbar spine and the paraspinal musculature.
●Range of movements:
o Flexion: 20 degrees
o Extension: 0 degrees.
o Right rotation: 40 degrees.
o Left rotation: 50 degrees.
o Right lateral tilting: 10 degrees.
o Left lateral tilting: 10 degrees.
●Range of movements: isolated thoracic spinal rotation:
o Right rotation: 20 degrees.
o Left rotation: 20 degrees.
●Tests:
o Axial loading: positive.
o Truncal rotation: negative.
Right shoulder:
●Inspection: revealed no trophic changes, no scarring and no wasting.
●Palpation: there was no tenderness. There was no increased temperature in the overlying skin.
●Range of movements:
o Flexion: 170 degrees.
o Extension: 40 degrees.
o Internal rotation: 60 degrees.
o External rotation: 60 degrees.
o Abduction: 130 degrees.
●Functional assessment: he was able to reach L2. He was able to reach the back of his head.
Left shoulder:
●Inspection: revealed no wasting. There was no alteration in hair distribution.
●Palpation: there was global tenderness around the shoulder. There was no increased temperature in the overlying skin.
●Range of movements:
o Flexion: 45 degrees.
o Extension: 0 degrees.
o Internal rotation: 10 degrees.
o External rotation: 20 degrees.
o Abduction: 20 degrees.
●Functional assessment: he was unable to reach his sacrum. He was unable to reach the back of his head.
Right elbow:
●Inspection: revealed no trophic changes, no scarring.
●Palpation: there was no tenderness.
●Range of movements:
o Flexion: 160 degrees.
o Extension: 0 degrees.
o Pronation: 70 degrees.
o Supination: 90 degrees.
Left elbow:
●Inspection: revealed no trophic changes, no scarring.
●Palpation: there was no tenderness.
●Range of movements:
o Flexion: 140 degrees.
o Extension: -20 degrees.
o Pronation: 40 degrees.
o Supination: 70 degrees.
Right forearm & wrist:
●Inspection: revealed no trophic changes, no scarring and no wasting over the forearm.
●Palpation: there was no tenderness.
●Range of movements:
o Flexion: 70 degrees.
o Extension: 70 degrees.
o Ulnar deviation: 20 degrees.
o Radial deviation: 20 degrees.
Hands:
●Inspection: revealed no trophic changes, no scarring and no wasting of the hypothenar or thenar eminence or the small muscles of the hands. There was no evidence of callosities. There was no evidence of ingrained dirt. His nails appeared normal. There was no alteration in sweating. There was no alteration in hair distribution.
●Grip strength: reduced bilaterally.
Upper limb measurements:
●Biceps circumference:
o Right: 36.5 cm.
o Left: 37 cm.
●Forearm circumference:
o Right: 30 cm.
o Left: 30 cm.
Lower limb measurements:
●Thigh circumference:
o Right: 51 cm.
o Left: 50 cm.
●Calf circumference:
o Right: 41 cm.
o Left: 40.5 cm.
Upper limb neurological examination:
●Power: normal bilaterally.
●Tone:
●Sensation:
o Right: 50%-60% sensory loss in the right middle, ring and little finger, the ulnar border of the hand and the ulnar border of the right forearm.
o Left: sensory loss in an ulnar distribution in the left hand, including middle, ring and little finger, the ulnar border of the hand and the ulnar border of the left forearm.
● Reflexes: dull yet symmetrical.
Lower limb neurological examination:
●Power: normal bilaterally.
●Tone: normal bilaterally.
●Sensation: 60% sensory loss bilaterally up to the level of the upper thighs.
● Reflexes:
o Ankle and knee reflexes: normal bilaterally.
o Plantar reflexes: down going bilaterally.
● Tests: straight leg raise test:
o Left (supine): 45 degrees.
o Right (supine): 75 degrees.
o Seated: 70 degrees bilaterally.”[73]
[73]Exhibit K, pages 6-9, Plaintiff’s Court Book 85-88
116 Dr Slesenger reviewed the Emergency Department records dated 23 November 2014,[74] the report of Mr Craig Timms dated 17 February 2015,[75] report of Dr Christopher Woodgate, pain specialist, Caulfield Hospital, dated 10 June 2015,[76] report of Dr Mirranay dated 9 March 2016,[77] Monash Emergency Hospital records dated 26 August 2016,[78] report of Mr Charles Flanc dated 27 October 2016,[79] report of Professor Richard Bittar dated 23 September 2017,[80] and the clinical notes of Dr Mirranay.[81]
[74]Probably tendered as exhibit 4
[75]Tendered as exhibit P1
[76]Not tendered in evidence
[77]Tendered as exhibit N1
[78]Not tendered in evidence
[79]Tendered as exhibit O
[80]Tendered as exhibit S1
[81]Probably tendered as exhibit N
117 Dr Slesenger also reviewed investigations, including various x-rays, radiological reports, MRI scans and ultrasound scans.
118 Dr Slesenger summarised the medical material. Having read the exhibits, I am satisfied that Dr Slesenger’s summaries of these reports are accurate.
“Report of Mr Craig Timms dated 17 February 2015
On 17 February 2015, Mr Timms writes in the capacity as a treating clinician, confirming an injury to Mr Qayom’s neck, left shoulder, mid-thoracic and lower back pain with sciatica with associated functional limitations as a result of the fall under consideration. Mr Timms noted the MRI scan showed ‘evidence of cervical disc protrusion, degenerative disease of the lumbar spine’ and recommended physiotherapy, hydrotherapy and massage program. He advised that Mr Qayom may be a candidate for a cervical spinal surgery (cervical discectomy at C6/7), though recommended an initial conservative approach.
Report of Dr Christopher Woodgate (Pain Specialist – Caulfield Hospital) dated 10 June 2015
It was noted that Mr Qayom presented following a fall from a 3-metre high platform, which collapsed beneath the children play centre, subsequent development of upper back, lower back, bilateral leg, right upper limb, left shoulder and chest pain. He was recommended to undergo a full assessment under the pain management team, including physiotherapy, occupational therapy and clinical psychology and medication changes were recommended.
Report of Dr Mirranay dated 9 March 2016
Dr Mirranay writes in the capacity as a treating clinician, noting that he had seen Mr Qayom on 28 November 2014, noting that 4 or 5 days previously, resulting in left upper back, shoulder and neck symptoms Mr Qayom had undergone investigations that had showed evidence of cervical and lumbar degenerative change. Mr Qayom was also noted to have ongoing chronic left shoulder pain, but no evidence of rotator cuff tear. It was noted that Mr Qayom had been treated under Caulfield Pain Management Clinic and he had been recommended to see a psychiatrist and a psychologist.
Monash Emergency Hospital records dated 26 August 2016
The records confirm that Mr Qayom attended the emergency department, citing a fall 2 years previously, developing chronic left shoulder and neck pain with chronic back pain and pain into his legs. He was managed under the care of the emergency team, underwent investigations that showed no evidence of a fracture and was referred back to his GP.
Report of Mr Charles Flanc dated 27 October 2016
Mr Flanc writes in the capacity as a treating clinician, confirming the history as presented to myself. Mr Flanc noted that the clinical records from the emergency department at Monash Medical Centre, confirmed initial attendance with diffused chest wall tenderness, tenderness along the thoracic spine, decreased sensation over the medial part of the left hand and bruising and a small laceration over the back of the right knee. It was noted that Mr Qayom underwent chest, thoracic spine, left hip and right knee x-rays and fractures were excluded. It was noted that Mr Qayom subsequently was treated under the care of his GP, Mr Timms, Caulfield Pain Management Clinic and also underwent treatment under the care of his physiotherapist.
At the time of the evaluation, Mr Qayom was complaining of neck, upper thoracic and lower back pain and left shoulder girdle pain and at the time, he was taking Lyrica, Targin, Panadeine Forte, Mobic and antidepressant medication.
Mr Flanc diagnosed ‘jarring/jolting cervical spinal injury, aggravating pre-existing degenerative disease of the cervical spine. Soft tissue injury to the thoracic spine, aggravation of the degenerative disease in the thoracic spine. Aggravation of pre-existing degenerative of the lumbar spine and subsequent development of frozen shoulder.’
Mr Flanc noted non-organic features. He advised of a 5% whole person impairment with regard to cervical spinal injury, 5% whole person impairment with regard to thoracic spinal injury, a 5% whole person impairment with regard to the lumbar spinal injury and 8% whole person impairment with regard to the shoulder injury.
Report of Mr Craig Timms dated 15 December 2016
Mr Timms writes in the capacity as an independent examiner, confirming that on review, Mr Qayom had ongoing neck, right arm, thoracic spinal pain, chest pain, lower back pain and sciatica. A recent MRI scan showed ‘a degenerative disc disease in the lumbar spine’.
Report of Dr James Rowe dated 31 October 2017
Dr Rowe writes in the capacity as an independent examiner, confirming an injury to Mr Qayom’s neck, back and left shoulder. Dr Rowe advised that Mr Qayom was not totally and permanently incapacitated for work and recommended that Mr Qayom should continue with a conservative management approach, including hydrotherapy and physiotherapy and recommended that Mr Qayom be reviewed in 12 months’ time. He also advised of a guarded prognosis.
Report of Prof Richard Bittar
Prof Bittar writes in the capacity as a treating clinician, confirming the history as presented
Clinical notes of Dr Mirranay (uncertified)
I have been provided with uncertified copies of Dr Mirranay’s clinical records, noting that the records disclosed postdate the index accident. I note that Dr Qayom initially attended on 28 November 2014 with left-sided neck, chest, lower back pain and left arm pain and presented in December 2014 with neck pain, left leg pain, as well as lower back pain.
Subsequent records are broadly consistent with the history presented to myself, noting ongoing symptoms in Mr Qayom’s neck, shoulder girdle lumbar spine (although, the individual clinical entries do not refer to all of the injured parts at each consultation). He also noted that Mr Qayom was prescribed antidepressant medication, as well as anti-inflammatory medication and analgesia. In 2015, Mr Qayom was referred to a pain management clinic. The records also refer to certification being provided for Mr Qayom’s insurance company and for Centrelink.
REVIEW OF INVESTIGATIONS
X-ray of chest by Dr Shay dated 2 May 2008
‘Cardiomediastinal contour is within normal limits. The lungs and pleural spaces appear clear.’
X-ray of left hip by Dr Lau dated 23 November 2014
‘No fracture or dislocation is seen in the left hip. No apparent fracture is present in the pelvis.’
X-ray of right knee by Dr Lau dated 23 November 2014
‘No Fracture.’
X-ray of chest by Dr Lau dated 23 November 2014
‘No abnormality.’
MRI scan of full spine by Dr Federman dated 2 December 2014
‘Clinical notes: Fall from 4-5 metres. Neck, upper back and lower back pain. Radiculopathy to left leg.
Comments:
1. No acute osseous or ligamentous injury.
2.Small central posterior disc extrusion at C6/7 causing mild canal stenosis.
3.Very mild broad-based disc protrusion at L4/5 associated with congenitally short pedicles results in lateral recess stenosis with mid contact of the descending L5 nerve roots bilaterally.
4.Right paracentral L5/S1 disc protrusion with mild contact of the descending right S1 nerve root.’
X-ray of left shoulder dated 2 February 2015
‘The shoulder appears enlocated. No visible rotator cuff calcinosis. The bones appear intact.’
Ultrasound scan of shoulder or upper arm by Dr Page dated 3 February 2015
(iii)Did the Plaintiff exaggerate the consequences of his injury and put on an act?
288 The medical evidence does not bear out the assertion of exaggeration. It is true that the quality of the medical experts’ opinions depends in part on the accuracy of the information provided by the plaintiff, but that is only one factor. Both Dr Slesenger and Professor Bittar examined the plaintiff and performed tests to verify the accuracy of his symptoms. Dr Slesenger found both organic and non-organic features to the plaintiff’s presentation; however, he considered that the non-organic features did not affect his overall findings and conclusions. Professor Bittar accepted the possibility of exaggeration but considered the plaintiff’s presentation to be consistent with the organic injuries as demonstrated objectively on radiological scans and on pathology. There is no medical evidence to contradict those expert opinions.
289 The defendant points to other inconsistencies to undermine the plaintiff’s credit. For example it is submitted that the plaintiff’s evidence that he had pain to the whole of his body immediately after the fall is inconsistent with the discharge records from Monash Hospital. It must be observed that the plaintiff testified that although he landed on his left side, he felt pain to the whole of his body. The hospital discharge records are brief and were taken at a later time. The records are not necessarily inconsistent with the plaintiff’s evidence.
290 The defendant submits that the plaintiff was caught out telling lies about his sitting tolerances because he was observed in Court and at other places sitting for longer periods than his claimed tolerance. The plaintiff explained that he sat in Court until given permission to stand or sit at will. He believed Court etiquette required him to sit. I accept the plaintiff’s explanation.
291 The defendant submitted that the plaintiff failed to make appropriate concessions and this undermines his credit. For example he would not concede that he ran to save his daughter or that he jumped onto the platform.
292 As a matter of commonsense, it is possible, if not likely, that a father rescuing his daughter would go as quickly as possible but given the stress of the situation, it also possible that the plaintiff has little recollection of the finer detail about how quickly he moved in his quest to reach his daughter.
293 The defendant submits that the plaintiff saw two general practitioners, seeing Dr Mirranay for the first time only after the accident and then only in relation to the consequences of the accident. The defendant submits this is tantamount to “doctor shopping”. The plaintiff explained that he saw Dr Mirranay because it was easier for him to communicate with him in his own language. The medical records of both general practitioners were tendered in evidence. There would be greater force in this submission if some inconsistency between the two sets of records could be found, but no such inconsistency has been identified.
294 The defendant submits that the plaintiff’s evidence to the effect that Mrs Dickinson made an admission that the platform from which the plaintiff fell had been previously broken was false and contrary to Mrs Dickinson’s evidence. As stated earlier, I was not satisfied with the accuracy of Mrs Dickinson’s evidence.
295 None of the matters advanced by the defendant as undermining the plaintiff’s credibility cause me to hold that the plaintiff is anything other than a credible and reliable witness.
The nature and extent of the Plaintiff’s injuries
296 According to the defendant, the Court should find that the plaintiff’s injuries were “relatively minor”.[230] In particular, the defendant identifies the following factors:
[230]Exhibit 9, paragraph 15
(a) The plaintiff suffered no fractures;
(b) The plaintiff sustained only minor grazing;
(c) There were soft tissue injuries to the left shoulder and spine;
(d) Radiology was consistent with mild degenerative changes only;
(e) There was no radiculopathy;
(f) There was no wasting of the left shoulder, arm or either legs;
(g) The plaintiff has had only minimal conservative treatment since November 2014, including only a few consultations with a physiotherapist and some hydrotherapy;
(h) Surgery is not proposed;
(i) The general practitioner has not referred the plaintiff to an orthopaedic surgeon; and
(j) The plaintiff has only seen a psychiatrist on one occasion and has not been under the care of a psychologist.
297 The defendant submits that the plaintiff’s injuries are likely to improve with time. Dr Rowe mentions a prospect of improvement but the likelihood of that is far from certain. I accept however that the plaintiff’s condition does not seem to have worsened over time.
298 On the other hand, the plaintiff points to the uncontradicted evidence adduced and tendered in the trial on behalf of the plaintiff. According to the plaintiff’s counsel, the evidence shows overwhelmingly that the plaintiff has sustained injury to the spine, neck and to the left shoulder. In addition, he has sustained psychiatric injury.
299 I am satisfied, on the balance of probabilities, that the plaintiff has suffered the following injuries as a result of the accident:
(i) Injury to the spine
300 I accept Professor Bittar’s unchallenged diagnosis that the plaintiff has suffered aggravation of cervical spondylosis, aggravation of thoracic spondylosis and aggravation of lumbar spondylosis.[231] I also accept Professor Bittar’s opinion, confirmed by radiology reports, that the plaintiff has suffered an annular tear at C6-7, a central posterior disc extrusion demonstrating the disc was rupturing out at the back at L4-5 level, contacting and compressing the L5 nerve roots at L5. I also accept his evidence that there is compression of the S1 nerve root.
[231]Exhibits S1 and S1
301 I also accept Mr Flanc’s evidence that the plaintiff has suffered an aggravation of a degenerative condition in the cervical, thoracic and lumbar spines.[232]
[232]Exhibit O
302 Dr Mirranay confirms Professor Bittar’s diagnosis.[233]
[233]Exhibit N2
303 I accept, on the balance of probabilities, the accuracy of Dr Slesenger’s unchallenged, and apparently accepted, evidence that, as a result of the accident, the plaintiff suffered soft tissue injury and chronic spinal pain, with radiating features affecting the cervical, thoracic and lumbar spine.[234] This evidence is largely consistent with Professor Bittar’s diagnosis.
(ii) Left shoulder injury
[234]Exhibit K
304 I am satisfied, on the balance of probabilities, that as a result of the accident, the plaintiff suffered injury to his left shoulder, most likely in the form of a soft tissue injury. In this regard, I accept the evidence that the plaintiff suffers ongoing chronic left shoulder pain as documented by Dr Mirranay[235] and supported by Dr Slesenger.[236]
(iii) Psychiatric injury
[235]Exhibit N2
[236]Exhibit K
305 I accept, on the balance of probabilities, that the plaintiff has suffered an Adjustment Disorder of moderate severity with Anxious and Depressed Mood based on the unchallenged evidence of Dr Serry, Dr Kishore[237] and Dr Mirranay. Dr Mirranay continues to prescribe medication for the plaintiff to alleviate his condition. The plaintiff’s unchallenged evidence is that he continues to take this medication and is likely to continue taking it into the future.
[237]Exhibit G, page 2
306 In arriving at my conclusions regarding the nature and extent of the plaintiff’s injuries, I note that the defendant has presented no medical, psychological or psychiatric evidence or any surveillance evidence to contradict the plaintiff’s evidence or the evidence of his expert witnesses. I adopt what I stated earlier about the impact the defendant’s failure to call or tender certain evidence has had on my process of reasoning to conclusions.
Pain and Suffering
307 It will be recalled that the plaintiff seeks pain and suffering damages in the order of $250,000 to $300,000. On the other hand, the defendant submits the appropriate amount is between $100,000 and $150,000, depending on my findings about the plaintiff’s credibility.
308 The defendant submits that notwithstanding the height from which he fell, the physical injuries sustained by the plaintiff as a result of the accident were relatively minor.
309 As to the impact of the injury and its consequences on the plaintiff’s leisure and other activities, the defendant submits that not that much has been lost since the plaintiff had little time for such activities due to his long work hours and his family commitments. The defendant also submits that in terms of his domestic life, the injury has had little impact because the plaintiff worked six days a week from 3.00pm to 11.00pm and this would leave little time to spend with his family or help around the house. In this regard, the plaintiff’s wife played the predominant role as parent and homemaker.
310 The defendant identified a number of concessions made by the plaintiff about his current activities:
· He reads, but not very often[238]
[238]T48
· He continues to go to the park with friends[239]
[239]T50
· He goes to the park with his children[240]
[240]T55
· He does some shopping with his wife[241]
[241]T51
· He is happy to put clothes in the washing machine, depending on his pain[242]
· Overall, the plaintiff has maintained a good relationship with his wife, although sometimes they fight because of his tension and depression.[243]
[242]T150
[243]T234-235
311 In summary, the defendant submits that there is no evidence of any significant diminution of the plaintiff’s involvement with his family.[244]
[244]Exhibit 9, paragraph 25
312 On the other hand, the plaintiff submits that the plaintiff was aged thirty-five years at the time of the accident. At the time of trial, he was thirty-nine years old. He is younger than many plaintiffs who have suffered comparable career-ending injuries, according to his counsel. Counsel identified factors from the plaintiff’s background that demonstrate he was a hardworking and committed employee dedicated to his family and improvement of their lot in life. In particular:
(a) The plaintiff arrived in Australia as a refugee from Afghanistan. At around aged twenty, he fled following fear of the Taliban. He arrived with minimal education and unable to communicate in English. He is self-taught in English, but with respect, his English is far from perfect.[245]
[245]T28-29 and T50
(b) Very soon after his release from detention, the plaintiff arrived in Melbourne, obtaining employment within two or three months.[246] Since then, the plaintiff has worked hard, learning on the job and acquiring new skills. The plaintiff has always worked long hours in physically demanding roles and has taken on extra work whenever possible. He loved his work.[247]
[246]T29
[247]T29 and T51
(c) It is not in controversy that the plaintiff demonstrated an aptitude to learn new skills and he was promoted from paint mixer to robot technician at DMG Venture, where he worked for approximately ten years.[248]
(d) The plaintiff is a married man who, through his own endeavours, was able to purchase a family home in Hallam. He has two young daughters. Counsel submits that the plaintiff was an active father and husband committed to raising his daughters and assisting his wife in the household chores. It is true that he worked long hours and was the sole source of the family’s income but that did not preclude him from contributing to family activities or from leading an active social life. The plaintiff was very social, he had many friends and he engaged in hobbies such as gardening.[249]
[248]T29 and T200
[249]T49, T220, T226 and T228
313 Counsel concede that it is possible that prior to the accident, the plaintiff may have had asymptomatic degenerative changes in his back; however, according to Professor Bittar, there is no evidence that this would have become symptomatic.[250]
[250]T325
314 The plaintiff’s counsel note that the plaintiff fell a considerable height, some 3.5 metres, landing directly onto concrete. As a result, according to the medical evidence, the plaintiff sustained injury as previously described.
315 Counsel submit that I should accept the plaintiff’s evidence that he is in constant pain of an intensity of at least 4 to 6 out of 10, rising to 7 to 9 out of 10 in the lower back,[251] extending to the legs and in the upper back, extending to the neck, head and in the left shoulder.[252]
[251]T53
[252]T46 and T53
316 Counsel concede that there are some non-organic factors in the plaintiff’s presentation but submit that these are of little moment. Overall, there is a substantial organic component to the plaintiff’s pain.[253]
[253]Professor Bittar – T297-T300 and T323
317 Counsel note that the plaintiff’s evidence to the effect that he requires multiple analgesic medications, including Lyrica, Targin and paracetamol, remains unchallenged.[254] Nor was any challenge made to the fact that the plaintiff regularly attends his general practitioner.[255]
[254]T45-46
[255]T45
318 In addition to his physical problems, there seems little dispute that the plaintiff has also suffered an Adjustment Disorder and Somatic Symptom Disorder notwithstanding the fact that he has had little psychiatric or psychological intervention. The predominant symptoms of these conditions are pain or exacerbation of pain, anxiety and depression.[256] For these conditions, the plaintiff takes anti-depressant medication, a fact not challenged by the defendant.[257]
[256]T244-T245
[257]T46
319 Counsel note that the plaintiff “has lost hope for the future”.[258] “This loss of this ‘sense of hope’ and ‘aspirations for the future’ was likely, in Dr Serry’s view, to have been ‘quite devastating’ for the plaintiff”.[259]
[258]T51
[259]T247; exhibit U, paragraph 11
320 The plaintiff’s counsel urge me to find that the plaintiff cannot return to the job he loved. He has lost his role as the family’s breadwinner and he has lost the social interaction and sense of self that comes with permanent employment. He has also lost the ability to be an active father and husband. He is no longer able to engage actively with his children, such as by playing with them in the park or by attending their kindergarten concerts. It is a loss he and his family feel acutely. He can no longer contribute, in a way he would like to, to household chores.[260]
[260]Exhibit U, paragraphs 12 and 13
321 The plaintiff, far from being idle before the injuries, led an active life, socialising with friends. That social life has been considerably diminished. He has also lost his pre-injury hobby of gardening and growing vegetables. Counsel submit that when one compares the plaintiff’s pre-injury life with his post-injury life, a very different picture is painted. The plaintiff now spends much of his time at home resting and lying on the floor to overcome his pain.
322 According to the plaintiff’s counsel, the totality of the evidence suggests that the plaintiff’s prognosis is poor. In particular, counsel submit I should be so satisfied on the evidence of Professor Bittar, Mr Timms, Dr Mirranay and Dr Serry.[261]According to counsel, the plaintiff is a “near invalid”,[262] who will be left with spinal pain and symptoms in his arms, chest wall, back and legs.[263] There is nothing that surgery can do for his injuries.
[261]Exhibit U, paragraph 17
[262]Exhibit U, paragraph 16
[263]Mr Timms, exhibit P2
Findings
323 I agree with the plaintiff’s counsel that the consequences of the plaintiff’s injuries sustained in the accident are considerable. That the plaintiff sustained no fractures in the incident does not mean that his injuries were relatively minor. The plaintiff’s medical evidence was largely unchallenged and there is no evidence to contradict the plaintiff’s evidence or the evidence called on his behalf regarding the impact the injuries have had on almost every aspect of his life.
324 Regarding the defendant’s suggestion that there is no wasting of the plaintiff’s left shoulder/arm or either legs, as was pointed out by Professor Bittar and Dr Mirranay,[264] it is difficult to establish whether that is a fact, since there is no evidence of measurements taken as the size of these limbs prior to the incident.
[264]Exhibit N2, page 2
325 It is true that the plaintiff’s treatment has been conservative but I do not consider that this is a major factor. The reality is not that the plaintiff does not need surgery, it is more that there is no surgery that can be offered to him at this stage.
326 I agree with the plaintiff’s counsel that the plaintiff’s prognosis is poor. Other than referring to Dr Rowe’s report that there is a prospect of improvement, no sign of improvement has yet occurred. The defendant has tendered no evidence to contradict the plaintiff’s medical evidence in this regard.
327 Regarding the possible trajectory of the degenerative changes in the plaintiff’s spine predating the accident, there is no evidence to state that the asymptomatic condition would have become symptomatic in due course. It is a matter that I will take into account when determining the discount to apply for vicissitudes of life.
328 On the question of psychiatric or psychological intervention, I agree with defence counsel that it is relevant to take account of the fact that the plaintiff has sought little assistance in this regard. On the other hand, he continues to take medication for his Chronic Adjustment Disorder with Anxious and Depressed Mood with features of traumatisation.[265]
[265]Dr Serry – exhibit L, page 7
329 As mentioned earlier, I am satisfied that the plaintiff was an honest and credible witness whose evidence remains largely unchallenged. In all the circumstances, and taking account of the totality of the evidence, I consider that an award of pain and suffering damages in the amount of $265,000.00 is fair and reasonable.
Past economic loss
330 The parties agree that the plaintiff was employed as a robot technician with Venture DMG at the date of injury, namely 23 November 2014. His average weekly net earnings for the financial years ending 2011 to 2014 are as follows:
30 June 2011 $1,146.00
30 June 2012 $1,229.00
30 June 2013 $1,096.00
30 June 2014 $1,094.00
331 The parties agree that but for the plaintiff’s injury, his net earnings would have incrementally increased each financial year. As at say October 2017, he would be earning $1,225.00 per week net. The parties therefore agree that the plaintiff has suffered past economic loss from his employment with DMG Venture at an average of $1,160 net per week. The parties agree that if I am satisfied that the plaintiff would have obtained work with Kenworth as a spray painter, he would have earned $1,300.00 net per week and would currently be earning $1,300.00 net per week. I am so satisfied.
332 Accordingly, the plaintiff’s past loss of earnings is:
for the period 23 November 2014 to 1 October 2017:
149 weeks at $1,160.00 per week $172,840.00
plus from the period 1 October 2017:
51 weeks at $1,300.00 per week $66,300.00
___________
Total $239,140.00
==========
333 The plaintiff has also lost superannuation contributions at 9.5 per cent of this amount. This equates to $150.00 per week for the period at DMG Venture, and $179.40 per week for the period at Kenworth. Thus:
for the period 23 November 2014 to 1 October 2017 (DMG Venture)
149 weeks at $150.00 per week $22,350.00
plus from 1 October 2017
51 weeks at $179.40 $9,149.40
_________
Total $31,544.40
=========
334 Accordingly, I assess the plaintiff’s total past economic loss as $270,684.40.
Future economic loss
335 The plaintiff submits that I should be satisfied, on the balance of probabilities, that the plaintiff’s earning capacity has been destroyed. I have earlier set out the evidence of Professor Bittar, Dr Slesenger and Dr Serry, all of whom support such a finding. In addition, there is support from the documentary evidence tendered on behalf of the plaintiff, including the reports from Dr Mirranay[266] and Dr Rowe.[267]
[266]Exhibits N1 and N2
[267]Exhibits Q1 and Q2
336 On the other hand, the defendant submits that the plaintiff has a capacity for employment. The defendant submits that Mr Timms and Dr Mirranay support such a conclusion. I do not agree that Mr Timms supports the conclusion that the plaintiff has a capacity for employment. In his first report,[268] only three months after the accident, Mr Timms thought it may take twelve months for the plaintiff to recover from his injury; however, when he reviewed the plaintiff on 15 December 2016,[269] Mr Timms confirmed that:
“… There are certainly disc injuries and some bulging at L4-5 and L5/S1. On these scans there is nothing that needs an operation, which is great news, but unfortunately … [the plaintiff] has been left with spinal pain and symptoms in his arms, chest wall, back and legs, which has left him incapacitated.”[270]
[268]Exhibit P1
[269]Exhibit P2
[270]Exhibit P2
337 Also, I do not agree that Dr Mirranay is of the view that the plaintiff has retained a capacity for employment. As mentioned earlier, although he certified the plaintiff as fit for work on modified duties for one brief period in February to March 2016, he imposed considerable restrictions on that work. As mentioned earlier, he certified the plaintiff fit for modified duties for two to three hours per day, three days per week. Dr Mirranay imposed restrictions on lifting, up to 5 kilograms; driving, up to 15 to 20 minutes; standing, up to 10 minutes; sitting up, up to 15 to 20 minutes; walking, up to 20 to 30 minutes, and, in addition, he noted that the plaintiff had become depressed after his injury. Moreover, it should also not be forgotten that by March 2006, Dr Mirranay was of the view that the plaintiff was unfit for employment,[271] a view confirmed in his subsequent report on 21 September 2018.[272]
[271]Exhibit N1
[272]Exhibit N2
338 I accept the evidence of the plaintiff, supported by the medical evidence to which I have already referred, that the plaintiff still has limited tolerances for sitting, standing, lifting, bending and twisting.
339 The defendant has not tendered any evidence to support the conclusion that the plaintiff has a capacity to undertake any form of employment.
340 I must also take into account the realities of the situation. The plaintiff has only ever worked in essentially manual labouring type jobs. He has limited education and has no formal academic, professional or trade qualifications. Although the plaintiff can communicate in four languages, his ability to communicate in English is poor. So much is evident from the transcript of the proceedings (supported by the audio visual recording of the proceedings) and from the email and text communications that the plaintiff wrote.[273]
[273]Exhibit F and exhibit 6
341 Although the plaintiff’s work history is good, he has only ever done factory work. He has never worked in an office or held a clerical position. I am also satisfied, on the balance of probabilities, that Dr Slesenger’s opinion about the plaintiff’s incapacity for work should be accepted. On that evidence, there is no job that the plaintiff could undertake in view of his injury and its consequences.
342 It will be recalled that DMG Venture ceased operation in October 2017. At DMG Venture, Mr Vinci was the plaintiff’s supervisor. Mr Vinci secured employment a month before DMG Venture ceased operation. He obtained employment with Kenworth as a robot technician. Mr Vinci also recommended other DMG Venture employees to Kenworth, all of whom obtained employment there. I accept Mr Vinci’s evidence that had the plaintiff not been injured, Mr Vinci would have nominated him for a position at Kenworth. Although I cannot be certain that the plaintiff would have obtained such employment, I am satisfied, on the balance of probabilities, that he most likely would have.
343 The defendant submits that the Court should only allow for loss of earning capacity for three years into the future from the present time on the assumption that the plaintiff would have had up to a year off work looking for new employment and regained employment at the present time, earning approximately the same as he did from his previous DMG Venture earnings.[274]
[274]Exhibit 10, page 2
344 The defendant calculates the plaintiff’s future loss of earnings at $1,225.00 net per week (his final earnings but for injury at DMG Venture as at 15 October 2017) for three years, with a reduction of 25 per cent to take account of vicissitudes and then add in 9.5 per cent for superannuation, resulting in an award of $149,331.00 for future economic loss.
345 On the other hand, the plaintiff submits that there is no basis to select an arbitrary period of three years into the future as the defendant has done. There is no evidence to support a finding that in three years’ time, the plaintiff will be fit for any form of work, let alone work of the type in which he had previously engaged. Counsel submit, and I accept, that the plaintiff will be unable to return to his pre-injury employment. I accept the uncontradicted evidence of the plaintiff that he intended to work until statutory retirement at age sixty-seven.
346 I am satisfied, on the evidence of Dr Slesenger, that the plaintiff is unfit for any form of employment, including the roles suggested to him in cross-examination. There is no contradictory evidence. As a starting point, I am satisfied that at a minimum, the plaintiff would earn not less than $1,160.00 net per week, with a multiplier of 796.7 for twenty-eight years (924,172). At a minimum he has lost weekly superannuation contributions on that amount of 9.5 per cent ($150 per week) times the multiplier of 796.7 for twenty-eight years, namely $119,505.00. Total $1,043,677.00. From this, the plaintiff’s counsel concede that a deduction of between 20 and 25 per cent should be made to reflect vicissitudes in life.
347 I have mentioned that these calculations are a starting point. It is impossible to be certain about future economic loss. Deduction must be made to reflect vicissitudes in life.
348 In arriving at the figure to be awarded for future economic loss, I also take account of the possibility that the plaintiff’s condition may well improve in time and that his English and computer skills may also improve. It is possible that the plaintiff may find some form of employment, perhaps part time, at least.
349 I also take into account the possibility that the plaintiff’s degenerative condition may, in any event, have become symptomatic at some time in the future as a result of the physical work he was undertaking and would otherwise be likely to have undertaken.
350 There are positive vicissitudes also, including the plaintiff’s demonstrated keenness to work and his desire to improve his lot in life. He might have obtained further qualifications and been promoted to higher paying positions.
351 In all the circumstances, I consider it appropriate to award $1,043.677 for future economic loss. From this, I consider a reduction of 25 per cent should be made to reflect the normal vicissitudes of life. That results in a total future economic loss of $782,758.00.
Medical and like expenses
352 The parties agree that the plaintiff has incurred the following past medical and like expenses:
(i) Attendances on physicians
The plaintiff incurred expenses related to consultations with physicians, including with his general practitioner, physiotherapist and specialist. The amount is $1,020.00;
(ii) Pharmaceutical expenses
The plaintiff has incurred expenses for medication used to help manage his condition, including for his psychiatric and psychological problems. The agreed amount is $505.05;
(iii) Miscellaneous expenses
The parties agree that the plaintiff has incurred expenses related to the treatment of his injuries, including travel expenses, lawn mowing assistance, cost of car parking and the cost of radiological scans. The amount for this is $1,630.00;
(iv) Amount repayable to Medicare Australia
The parties agree that the plaintiff is liable to repay Medicare Australia, towards which the defendant agrees to pay $3,991.00.
353 That results in a total loss for past medical and like expenses of $7,146.00.
Future medical and like expenses
354 The parties do not agree that the plaintiff will require future medical and like expenses well into the future. The defendant would allow for such expenses ten years into the future as follows:
(i) General practitioner consultations (twelve sessions per year at $35.00 per session over ten years, applying the ten-year multiplier, equals $3,334.00);
(ii) Pharmaceuticals ($30.00 a month over ten years, applying the ten-year multiplier, equals $2,858.00);
(iii) Gardening ($50.00 a visit by twelve visits per year over ten years equals $4,764.00).[275]
[275]An unspecified multiplier has been applied
355 From these amounts the defendant urges a reduction of 25 per cent to reflect vicissitudes of life, resulting in an award of $8,217.00.[276]
[276]Exhibit 10, page 2
356 On the other hand, the plaintiff claims the following future medical and like expenses:
(i) General practitioner
The plaintiff submits that he will require ongoing access to treatment and attendances to obtain prescriptions to manage his various conditions. He claims monthly sessions at the agreed rate of $35.00 per session for the rest of his life. $35.00 per month for life with a multiplier of 956.1 equals $8,365.88;
(ii) Pharmaceutical expenses
The plaintiff submits that he will be required to continue taking Duloxetine, Targin, Panadol and Lyrica to manage his condition at an estimated agreed cost of $30.00 per month. He claims this expense for the rest of his life. $30.00 a month (or $7.50 per week) for life with a multiplier of 956.1 equals $7,170.75;
(iii) Psychiatric attendances
The plaintiff claims psychiatric treatment at the rate, frequency and duration proposed by Dr Serry, namely fortnightly consultations for four months at say $315.00, monthly consultations for eight months at say $315.00 per consultation and two to three-monthly consultations indefinitely at $315.00 per consultation:
Fortnightly consultations: $2,520.00
Monthly consultations $2,520.00
Indefinite consultations for life $30,117.15
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Total for psychiatric attendances $35,157.15
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As mentioned, the plaintiff agrees that a reduction of up to 25 per cent should be applied to reflect vicissitudes.
Counsel for the plaintiff also frankly conceded that the plaintiff may not need treatment to the date of death. Even so, there is no evidence that the plaintiff’s needs for medical treatment and pharmaceutical expenses as a result of the injuries will cease at retirement age. Nor is there evidence to pick an arbitrary figure of ten years’ allowance into the future for these expenses. I have taken counsel’s concession into account when fixing the appropriate discount for vicissitudes.
I propose to allow general practitioner expenses of $8,365.88 plus pharmaceutical expenses of $7,170.75, a total of $15,536.63, reduced by 25 per cent to reflect vicissitudes.
I do not propose to allow future psychiatric attendances. Despite having been advised to undertake such treatment by Dr Kishore, the plaintiff has demonstrated no interest in pursuing such option.
This results in a total award for future medical and pharmaceutical expenses of $11,652.47.
(iv) Gardening assistance
The defendant would allow gardening assistance at $50.00 per visit, twelve visits per year for ten years: $4,764.00, with a reduction of 25 per cent for vicissitudes. A total of $3,573.00. On the other hand, the plaintiff submits that he is unable to mow the lawn and that he is unlikely to be able to do so for the remainder of his life. He therefore seeks $50.00 per month for the rest of his lifetime, applying a multiplier of 956.1. A total of $11,951.25 with a reduction conceded of up to 25 per cent for vicissitudes. I propose to allow $8,963.43.
(v) Gratuitous care
The defendant submits that the Court should allow no more than one hour per week for gratuitous care at an average of $37.00 an hour for the past 201 weeks, a total of $7,437.00. On the other hand, the plaintiff claims seven hours of gratuitous care per week at various rates set out in exhibit V, with a total of $53,097.70. I agree with the defendant’s observation that when he was working, the plaintiff was occupied six days a week, at least eight hours per day, in a physically demanding job. I accept that he contributed to domestic chores but I am unable to quantify precisely how many hours of housework and the like he performed at that time. I accept the plaintiff’s evidence that since the accident, he has required the assistance of his wife, and that this has required her to perform duties for the plaintiff she otherwise would not have had to perform. These duties include assisting the plaintiff with dressing and carrying his load of the household duties. I assess past gratuitous care at approximately half-an-hour per day or three-and-a-half hours per week. I accept the defendant’s calculation, applying an average of $37.00 per hour for the past period of 201 weeks. This results in an allowance of $26,029.50.
Conclusion and Orders
357 I propose to enter judgment in favour of the plaintiff.
358 For the reasons set out above, I assess the plaintiff’s damages in the sum of:
· Pain and suffering damages $265,000.00
· Loss of earning:
- Past $270,684.40
- Future $782,758.00
· Medical and like expenses:
- Past $7,146.00
- Future $11,652.47
· Gardening assistance $8,963.43
· Gratuitous care $26,029.50
____________
Total: $1,372,233.80
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359 I shall hear the parties on the question of costs.
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