Saliba v Speedpro Industries
[2014] VCC 336
•2 April 2014
| IN THE COUNTY COURT OF VICTORIA CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-12-05491
| ADRIAN SALIBA | Plaintiff |
| v | |
| SPEEDPRO INDUSTRIES | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19, 20, 21 March 2014 | |
DATE OF JUDGMENT: | 2 April 2014 | |
CASE MAY BE CITED AS: | Saliba v Speedpro Industries & Anor | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 336 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to lower back – film – film in stark contrast to the pain and suffering consequences and loss of earning capacity consequences referred to in the plaintiff’s affidavit, or evidence and histories given to examining medical practitioners – whether the plaintiff is creditworthy and reliable
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b)
Judgment: The plaintiff's Originating Motion is dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms A Malpas | Victorian Compensation Lawyers Pty Ltd |
| For the Defendants | Mr S Smith | Herbert Geer |
HIS HONOUR:
Introduction
1 By an Originating Motion filed 13 November 2012, the plaintiff seeks leave pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) to bring a proceeding against the defendants to recover damages at common law.
2 The plaintiff claims that he has suffered a permanent serious impairment or loss of the function of his lower back. The claim made by the plaintiff that he suffered a permanent severe mental or permanent severe behavioural disturbance or disorder was abandoned.
3 The plaintiff claims that the impairment of the function of his lower back has resulted in pain and suffering consequences and loss of earning capacity consequences which meet the statutory test.
4 Ms A Malpas of counsel appeared for the plaintiff. Mr S Smith of counsel appeared for the defendants.
5 The following evidence was adduced at the trial of the proceeding:
·The plaintiff gave evidence and was cross-examined
·The plaintiff tendered his Court Book (“PCB”), pages 12-22 and 36-172, and from the defendants’ Court Book (“DCB”), pages 38-42 and 54-65: exhibit A
·The plaintiff tendered film taken of the plaintiff on 5 November 2012: exhibit 1
·The defendants tendered their Court Book, pages 7-37; 54-62; 66-70 and 109-145: exhibit 2.
The issues
6 Ms Malpas submitted that I should accept the plaintiff's evidence in whole, which should lead me to conclude that the injury suffered by the plaintiff has resulted in an impairment of function which meets the statutory test for pain and suffering consequences. In relation to loss of earning capacity consequences, she submitted that the plaintiff can no longer work in his former occupation as a concreter, and is, in effect, totally incapacitated for “suitable employment” as defined.
7 Mr Smith submitted that the plaintiff was neither a creditworthy nor reliable witness. He pointed, firstly, to the film taken on 5 November 2012 which demonstrated activity entirely in contrast to what the plaintiff deposed to in his affidavits and in histories recorded by a number of medical practitioners, such that I should not accept him as a witness of truth. Secondly, he submitted that the plaintiff's admissions that he had dishonestly avoided filing taxation returns for financial gain could be taken by me as evidence of the plaintiff’s lack of creditworthiness.
8 Mr Smith also submitted that if I was not impressed by the film of the plaintiff, that I should at least conclude that the plaintiff has retained a residual capacity for suitable employment and should fail on that part of his application, and otherwise the claim for pain and suffering consequences was a matter of range.
The compensable injury
9 The plaintiff commenced employment with Speedpro Industries Pty Ltd in February 2008. He was employed on a casual basis with an expectation that he would work full-time hours comprising 36 hours per week with overtime.
10 On 3 April 2008, the plaintiff was assisting another worker who was operating a vibrating machine used in laying concrete. He took over operating the vibrating machine from the other worker. At one point in its operation he moved it and walked backwards with it, which resulted in him experiencing sharp pain in his lower back.
11 The plaintiff made a claim, which was accepted. He was paid 130 weeks of weekly payments of compensation, and he was also paid his medical and like expenses. Hence, there was no issue that the plaintiff had suffered a compensable injury. He ceased working with the first defendant on 3 April 2008.
The Plaintiff’s evidence
12 The plaintiff was born in July 1971. He is now forty-two years of age. He is a married man with three children.
13 The plaintiff says he was incapacitated for work from 3 April 2008 until November 2010, when he obtained work with the Victorian Protection Security Services in Yarraville. He maintained that employment until 19 January 2011, when he ceased working because he was experiencing unbearable pain and frustration, resulting from the compensable injury.
14 The plaintiff saw Dr Tan, general practitioner. Dr Tan referred the plaintiff to have an MRI scan, which was undertaken on 8 April 2008, and then a second MRI scan, which was undertaken on 27 May 2008. The two radiologists considered that the MRI scans demonstrated a disc abnormality at L5-S1, but with no neurological abnormality. He was later referred to have a CT scan on 3 March 2011. The radiologist described the appearances on the CT scan as a mild left paracentral disc prolapse and osteophyte complex at L5-S1 associated with mild left-sided foraminal stenosis which might have been partially impinging on to the left L5 nerve root.
15 Dr Tan referred the plaintiff to Mr Bittar, neurosurgeon. The plaintiff saw him on 18 July 2008. Mr Bittar considered that the MRI scan undertaken on 27 May 2008 demonstrated mild desiccation of the L5-S1 intervertebral disc with annular tear and broad-based disc prolapse. He considered that the plaintiff was suffering from discogenic pain secondary to the disc injury at L5-S1. He recommended that the plaintiff pursue conservative treatment, for example physiotherapy, hydrotherapy or Pilates, and that he be referred for psychological counselling.
16 Ms Malpas informed me that there was some evidence to suggest that the plaintiff was referred back to Mr Bittar. Whilst that might be so, the only report from Mr Bittar is a courtesy letter which he wrote to Dr Tan dated 18 July 2008. There is no explanation why the plaintiff returned to see him, nor is there anything from Mr Bittar explaining the reason for the referral nor any conclusions he reached relevant to the plaintiff's current position.
17 Dr Tan referred the plaintiff to Dr Thomas, consultant in rehabilitation in pain medicine. The plaintiff first saw him on 9 December 2009. He reviewed him on 16 June 2010. The plaintiff told Dr Thomas that he had undergone a trial of acupuncture, chiropractic, physiotherapy and like conservative treatment. He was also undergoing an exercise program and hydrotherapy. He was taking Nurofen (an analgesic) or Zydol (an opioid painkiller similar to Tramadol). The plaintiff told Dr Thomas that he was taking that medication “only primarily before going to bed”.
18 Initially, Dr Thomas considered that the plaintiff was suffering from facetogenic rather than discogenic lower back pain, but he added that it was undifferentiated, which I take to mean that the symptoms are the same irrespective of the source. He said that the plaintiff needed to look at a return to work. He recommended that he undertake a rehabilitation program. It would appear that the plaintiff did undertake the rehabilitation program, but when he was reviewed by Dr Thomas on 16 June 2010, he complained of predominantly left-sided lower back pain which was continuous and which worsened on prolonged sitting, standing, walking and through similar activities. He recommended that the plaintiff pursue “back friendly” work.
19 Apart from reports from a chiropractor and a physiotherapist, there are no other reports from any treating medical practitioners. No further opinions were obtained from Mr Bittar or Dr Thomas. The plaintiff’s case was then based upon medico-legal assessments obtained by the plaintiff and by the defendants. It would appear that the upshot of those assessments is that the plaintiff probably suffered a broad-based disc bulge at L5-S1 as demonstrated on the scanning.
The Plaintiff’s complaints
20 The plaintiff swore one affidavit on 21 May 2012. He has not sworn any further affidavits, nor did he give any evidence to update his position relevant to whether what he swore to in his first affidavit now represents the pain and suffering consequences and loss of earning capacity consequences he suffers now.
21 The plaintiff’s affidavit is a very elaborate affidavit which goes into significant detail about the consequences of the impairment of the function of his lower back. In summary, he said:
· He has trouble sleeping;
· He has significant problems with self-care and personal hygiene;
· Straining on the toilet increases the pain in his lower back, as does coughing and sneezing;
· Physical activities such as standing or sitting for a prolonged period of time, reclining too long in one position, walking for prolonged distances or in a repeated fashion, stooping, squatting, getting up after kneeling, reaching, bending, as well as repeated or prolonged twisting and leaning increase his pain and cause him more difficulty;
· His ability to participate in sports and hobbies such as fishing, martial arts, cycling, road biking, extreme four-wheel driving, weight training, swimming, camping and hunting have been adversely affected;
· His ability to be as active with his children has been adversely affected;
· His ability to engage in vigorous and repeated activity such as running, jogging or exercising has been adversely affected;
· His ability to assist the family in cooking and engaging in basic homecare, car maintenance, doing laundry, removing rubbish and generally assisting his family has been adversely affected.
22 The histories which the plaintiff gave to the medical practitioners who assessed him on a medico-legal basis are very similar to what he swore to in his affidavit. I do not propose to set out what he said to each medical practitioner, but for example when he saw Dr Sutcliffe, occupational physician, on 7 August 2013, she recorded the following:
“Mr Saliba informed me he now experiences constant pain present in the low back centrally and radiating into both buttocks and the posterior aspect of both legs to the feet.
He has some pain at the anterior aspect of both knees. The symptoms are accompanied by pins and needles in the low back.
The pain is present in the back at an intensity of 7.5-8 on a Visual Analogue Scale of zero to ten, increasing to an intensity of 10 at times. The leg pain is present at an intensity of 5-6 on a similar scale. He describes stabbing pain in the back and aching in the legs.
Mr Saliba informed me he wakes at night every night because of pain and has difficulty with sleep. He believes he can sleep no more than 2-3 hours at a time.
In addition he experiences waking pain each morning and increased pain with activity and also with movement. As a result of the persisting pain, walking is limited to 10-15 minutes, standing to 15-20 minutes, and sitting for one hour, during which time he needs to move around. His driving is limited to 30 minutes at a time. … .”
23 The plaintiff told Dr Sutcliffe that he was taking four to five Nurofen Plus per day; two Aspalgin (a painkiller containing aspirin and codeine phosphate), which I assume he takes each day, and Zydol, which I assume he takes each day, but he did not inform Dr Sutcliffe how many he took per day.
24 A comparison between the history taken by Dr Sutcliffe with the other medico-legal assessors shows that her history is probably the most elaborate and extensive account of the plaintiff’s complaints.
The film
25 The defendants obtained film of the plaintiff on 5 November 2012. It is relevant to note that the plaintiff swore his affidavit some six months before the film was taken. Dr Sutcliffe examined the plaintiff some ten months after the film was taken. The plaintiff maintained in his evidence that what he swore to in his affidavit and what he told Dr Sutcliffe were essentially the extent to which he has suffered pain and disablement from the impairment of function of his lower back.
26 The film demonstrates a remarkably different picture altogether. It shows the plaintiff undertaking a recreational activity which was arduous in part and which exposed his lower back to probably significant stress and strain, but at no time did the plaintiff demonstrate any difficulty in having full, free and unrestricted movement in his whole spine.
27 The following is a short summary of the films which extended to a little over two-and-a-half hours:
· The plaintiff drove for about one and three quarter hours from his home to a beach at Anglesea.
· At 11.12am, the plaintiff parked his four-wheel-drive car at a beach car park. He was holding a fishing rod at the rear of his car. He had a practice cast with what appeared to me to be a long surf fishing rod. He stood on the towbar of the car and bent at the back into the rear parcel carrying area of the car to retrieve a pair of waders and a fishing bag. He bent and pulled the waders over his legs and fixed them over his legs and upper body.
· At 11:17am, he slid down an embankment on his behind, and then stood against the embankment until about 11:33am, fixing his fishing tackle. He was standing all of that time.
· The plaintiff then walked down the beach with the rod and fishing bag over his shoulder. He put the fishing bag down. He then entered the water. When he was approximately knee deep, he cast the line into the water, and then walked back out of the surf. He jammed a rod holder into the sand and fixed the rod onto it. He then stood in ankle deep water.
· At 11:45am, he retrieved the rod holder and jammed it into the sand with some force while bending at the back.
· At 11:51am, he took hold of the rod, walked out into slightly deeper water and reeled in the line while holding the rod in both hands. He left the water, walked to where his fishing bag was sitting on the sand. He bent at the back fully to retrieve something from the bag, and then he re-entered the water. He cast the line and repeated his use of the rod and the rod holder as described above.
· Between 11:57am and 12 noon, he bent down to wash his hands in the water and again, to retrieve something from the water. The bends were about 45 degrees. He repeated the same bending motion to wash his hands at about 12:10am.
· At 12:12am, he reeled in the line and put the rod over his shoulder. He walked onto the beach, where he began fixing the tackle on his rod.
· At about 12:17am, he stood with a group of other men. He had the rod over his shoulder. He bent down to 45 degrees at the back to pat a dog.
· At 12:20am, he entered the water to just over knee deep, cast the line and then walked into shallower water, where he fixed the rod to the rod stand.
28 There was a break on two occasions when Mr Smith applied to cross-examine the plaintiff. On both occasions the plaintiff admitted that he was the person shown in the film. He said that he was probably in severe pain at the time when he was seen fishing. He said that he would have coped with the pain because of the painkillers he had probably taken earlier that morning. Further film was shown to him which showed the following:
· At 2:45pm, the plaintiff was shown in water just over knee deep casting the line.
· The film was fast forwarded to 3:57pm, when plaintiff was shown nearly waist deep in water casting the line, and, towards the end of the film, he was shown reeling the line in jerking the rod backwards and at the same time jerking his back as he reeled it in.
29 Mr Smith put to the plaintiff that he drove for one-and-three-quarter hours from his home to Anglesea, spent about five hours fishing, and then drove for one and three-quarter hours from Anglesea to his home. The plaintiff admitted that he engaged in that activity. Ms Malpas did not require Mr Smith to show all of the film. She conceded that it was likely that the film not shown to the plaintiff showed him continuing to fish in a manner consistent with what had already been seen on the film.
30 Mr Smith took the plaintiff to the history recorded by Dr Sutcliffe. He put to him that the film showed him walking, standing and driving his car for considerably longer periods than he told Dr Sutcliffe was his capacity. The plaintiff did not disagree, but he repeated that he was probably in severe pain while fishing and that he had taken energy drinks and medication that morning which enabled him to tolerate that activity.
31 When the plaintiff was re-examined, he said that he would have been in severe pain on the day when he was shown fishing. He said that he probably would have needed to lie down for two or three days after that episode of fishing. He said that the only occasions he had been fishing since the incident were on three or four occasions, including the one shown on the film.
32 The film shows that the plaintiff is someone who takes fishing seriously. He has a four-wheel-drive vehicle which he no doubt uses for outdoor activities. He used it to load and carry his fishing equipment from his home to the beach in Anglesea. The fishing equipment comprised a long surf rod. It is difficult for me to estimate its length. It appeared to me to be somewhere between 8 to 10 feet in length when judged against the plaintiff’s height. The plaintiff appeared to me to be about 5 foot 8 inches in height, or thereabouts. He had a bag containing his fishing equipment, and waders. The equipment was certainly not that of an occasional fisherman, but someone who enjoyed that recreation and probably engaged in it quite a bit. The plaintiff estimated that before he was injured he used to go fishing nearly every weekend.
33 I think it is most unlikely that the plaintiff has only been on fishing trips three or four times since the incident. The film suggests to me that the planning involved in going to the beach in Anglesea, together with the equipment which the plaintiff had at his disposal, and the manner in which he fixed the tackle, entered the water, cast the line, fixed the rod onto the rod holder and reeled the line in, makes it difficult for me to accept that he has only engaged in that activity a handful of occasions since the occurrence of the incident.
34 There was nothing which I saw on the films to suggest that the plaintiff showed even the slightest interference with his capacity to stand, walk, carry the fishing rod, twist and extend his spine while casting the line and to walk against the weight of the water sometimes up to knee height and above wearing waders which would have been an extra weight for him to carry as he walked through the water.
35 For the plaintiff to suggest that he used energy drinks to motivate himself, and medication to suppress the pain so that he can engage in activity I think is utterly implausible. Furthermore, to suggest that he was in severe pain while engaging in that activity is something which I also think is also utterly implausible. The type of pain the plaintiff was describing was the sort of pain he described to Dr Sutcliffe. It must be remembered that he described the pain as constant with an intensity of 7.5-8 which is very high, and sometimes it is as high as 10. The impression I obtained from the plaintiff’s evidence was that his use of the word “severe” to describe the pain he was in when fishing was probably 10 on the scale used by Dr Sutcliffe to measure the pain experienced by the plaintiff.
36 Lastly, in relation to the film, what makes the whole of the plaintiff's evidence contained in his affidavit utterly implausible is the fact that he was involved in a significant driving trip from his home to the beach in Anglesea, and the return trip, and as well as being on his feet for a very considerable period of time and up to five hours or more engaged in fishing. The plaintiff has never described his capacity to engage in an activity of that kind to any examining medical practitioner.
The medical evidence
37 The film was not shown to any of the medical practitioners who have offered an opinion on the nature and extent of the injury suffered by the plaintiff to his lower back. However, it is not the sort of film which exposes me to some difficulty in knowing what to make of it. I think it is so demonstrably at odds with the plaintiff’s evidence to lead me to conclude that I do not believe the plaintiff that the impairment of function of his lower back has resulted in the pain and disablement he swore to in his affidavit and in the histories recorded by the medical practitioners whose evidence I have reviewed.
38 However, the plaintiff probably suffered some injury to his lower back. There is some evidence of that in the scans. The medico-legal assessors accepted the plaintiff at face value, and having done so, were prompted to consider that what was shown in the scans was probably the source of the pain complained of by the plaintiff.
39 Mr Myers, general surgeon, examined the plaintiff on 30 July 2013. The history he took from the plaintiff is similar to Dr Sutcliffe's history. He considered that the plaintiff had suffered degenerative intervertebral disc disease at the L5-S1 level with nerve root irritation or from foraminal stenosis. He considered that the plaintiff had no capacity for unrestricted manual pre-injury employment.
40 Dr Sutcliffe’s opinion is very much the same as Mr Myers. She considered that the plaintiff had suffered a disc derangement L5-S1 with radicular pain into the buttocks and posteriorly into his legs bilaterally with some evidence of neuropathic type pain. She considered he was totally incapacitated for employment.
41 Mr Nye, neurosurgeon, examined the plaintiff on 6 August 2008 and 3 December 2013. The history he obtained from the plaintiff is rather more brief than was obtained by Dr Sutcliffe, but it was to the same effect regarding the extent of the pain and disablement suffered by the plaintiff. He was of the opinion that the plaintiff suffered an injury to his lower back. He referred to the scans identifying significant lumbosacral disc degeneration and a central disc protrusion. He did not consider that the plaintiff was suffering from sciatica and that there was no evidence of radiculopathy. He considered that the plaintiff was suffering from a Chronic Pain Syndrome with a psychological component and that he needed to be assessed by a psychiatrist. He considered that the plaintiff was partially incapacitated.
42 Mr Kudelka, orthopaedic surgeon, examined the plaintiff on 3 May 2010 and 17 June 2013. When he first examined the plaintiff he considered that the plaintiff suffered an injury to lumbo-sacral disc and had some sciatic nerve irritation. He did not describe the injury in the same way when he re-examined him, but it would appear that he did not change his opinion.
43 The plaintiff was examined by a number of other medical practitioners who were concerned to investigate the injury to his lower back. Neither Ms Malpas nor Mr Smith took me to their opinions. Their opinions appear to me to be of little relevance. I do not propose to summarise them. I should add that some are psychiatrists. The fact that the plaintiff has abandoned his claim for serious injury arising out of a secondary psychiatric injury makes it unnecessary for me to consider the psychiatric evidence.
44 Dr Tan has treated the plaintiff since about the time of the occurrence of the incident. Unfortunately, his reports are barely edifying. He has referred to conclusions regarding the plaintiff’s pain and disablement, but has not referred to the basis upon which he reached those conclusions. It is clear that he accepts the plaintiff at face value, because in his last report dated 28 October 2013, he considered that the plaintiff was suffering from severe pain in his lower back, he was dependent upon medication, and that he was totally incapacitated for any employment.
45 Despite my very serious misgivings about the plaintiff's creditworthiness, it is clear that he has had medical treatment. His affidavit described attending Dr Tan, treatment from Mr Bittar and Dr Thomas, and treatment from paramedical specialists in chiropractic and physiotherapy. He has undergone rehabilitation at the Dorset Rehabilitation Centre. He had a CT-guided nerve block on 23 January 2012 referred by Dr Tan, but there is no evidence of the provider of that treatment and the result of that treatment, that is, whether it was beneficial or not.
Conclusions
46 In summary, I conclude that the plaintiff has not told the truth. The parts of the affidavit which I have summarised are in stark contrast to what was shown in the film. Similarly, the history given to Dr Sutcliffe, and for that matter, the other medical practitioners who examined the plaintiff for this case, were given at times approximate to the film. Their histories are, broadly speaking, similar to the history given to Dr Sutcliffe. It would appear that the plaintiff has painted a picture to the medical practitioners of a very high level of pain and disablement which is simply not borne out by what I have seen on the films.
47 Mr Smith commenced his cross-examination by calling for the production of taxation returns for the years ending 30 June 2002 to 2007. They were not produced. He cross-examined the plaintiff whether he had prepared taxation returns and lodged them with the Taxation Department. The cross-examination commenced late in the afternoon of the first day of the trial. The plaintiff persistently fudged his answers, neither being prepared to say that the taxation returns had been prepared and lodged or not. It was only on the following morning that he gave unequivocal answers that they had not been lodged. However, when Mr Smith returned to the subject of the plaintiff’s taxation returns, the fudging returned. It returned even in the face of a letter from the Taxation Department which stated that the Department had not received taxation returns from the plaintiff for those years.
48 Mr Smith submitted that the plaintiff's answers regarding his taxation returns demonstrated a tendency to giving false evidence, and that I should accept that such a tendency infiltrated all aspects of the plaintiff's evidence.
49 The conclusion I have reached regarding the plaintiff's creditworthiness and reliability is that he is barely creditworthy, and as a result, unreliable. It is the film that has largely led me to reach that conclusion, but his prevarication over a simple matter of preparing and lodging taxation returns has increased my doubt about his creditworthiness and reliability. Furthermore, so deep is my mistrust of the plaintiff's evidence that I have serious doubts about his evidence regarding his working history, and in particular, in the absence of evidence from persons who could have corroborated what he has said in his affidavits.
50 It is for the foregoing reasons that I order that the plaintiff’s Originating Motion be dismissed.
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