Schembri v TAC

[2015] VCC 269

IN THE COUNTY COURT OF VICTORIA

AT BALLARAT

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No. CI-13-04535

MICHAEL SCHEMBRI	Plaintiff
v
TRANSPORT ACCIDENT COMMISSION	Defendant

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JUDGE:	HIS HONOUR JUDGE BOWMAN
WHERE HELD:	Ballarat
DATE OF HEARING:	2, 3, 6 & 7 October 2014
DATE OF JUDGMENT:	20 March 2015
CASE MAY BE CITED AS:	Schembri v TAC
MEDIUM NEUTRAL CITATION:	[2015] VCC 269

REASONS FOR JUDGMENT
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Catchwords:  Transport Accident Act 1986 – s93 – accepted transport accident – injury to the low back, hips, left knee and psychological or psychiatric injury – reliance upon paragraphs (a) and (c) of the definition of “serious injury” – reliance upon Richards v Wylie – credibility of the plaintiff – whether burden of proof has been discharged – factors to be considered. 

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr T Seccull with Mr N Dubrow	Saines Lucas
For the Defendant	Mr P Jens with Mr S Smith	Solicitor to the Transport Accident Commission

HIS HONOUR:

General background

1 This matter comes before me by way of an application pursuant to s93(4)(d) of the Transport Accident Act 1986 (hereinafter referred to as “the Act”). Reliance is placed upon paragraphs (a) and (c) of the definition of serious injury found in s93(17) of the Act. Further, in relation to the physical injuries, counsel for the plaintiff made it clear that some reliance would be placed on what was described as a Richards & Anor v Wylie [2000] 1 VR 79 amplification.

2       There is no argument but that the plaintiff was involved in a transport accident on 7 April 2010, when another vehicle collided with the rear of a car driven by him, a collision occurring in Ballarat Road, Maidstone.  The injuries could be summarised as being to the spine, and particularly to the lumbar spine; to the right and left hips; to the cervical spine; and to the left knee.  Further, in respect of psychological or psychiatric injuries, it is alleged that the plaintiff suffers from an Adjustment Disorder, a mixed anxiety/depressive disorder, Post-Traumatic Stress Disorder, panic disorder and pain disorder.

3       Mr T Seccull of counsel with Mr N Dubrow of counsel appeared on behalf of the plaintiff.  Mr P Jens of counsel with Mr S Smith of counsel appeared on behalf of the defendant.  Apart from the opening, the defendant’s case was in essence conducted by Mr Smith.  The plaintiff gave evidence, including the adoption of four affidavits, and was cross-examined.  The plaintiff’s estranged wife, Mrs Shelley Schembri, also gave oral evidence, adopting an affidavit and being cross-examined.  The balance of the evidence was documentary in nature, including surveillance videos, and was tendered either by consent or without objection.

4       Further, this was a somewhat complicated and lengthy hearing for an application of this kind.  There were placed in evidence some 35 medical and radiological reports.  There were no fewer than seven affidavits filed on behalf of the plaintiff.  There was surveillance material to be reviewed.  The case was conducted over four hearing days.  As shall be discussed, the plaintiff was far from being a good historian.  In short, as these applications go, this was an involved matter which required careful consideration.  I apologise for the delay in the handing down of this Judgment, but, apart from its complicated nature, the intervention of the annual vacation and a circuit which I conducted also contributed to the delay.

Factual background

(i)        The plaintiff’s background prior to the injury

5       The plaintiff is aged 39 years, he having been born on 17 November 1975. He married Mrs Shelley Schembri on 30 November 2012, and they lived for a period with a total of seven children from previous relationships.  He is now separated from his wife and has found a new partner.

6       The plaintiff left school at the age of 14.  I accept that he is, essentially, totally illiterate.  He had a troubled childhood, with considerable tension between himself and his step-father.  After leaving school, he worked briefly for the then Sunshine City Council, before commencing an apprenticeship as a motor mechanic.  He does not seem to have completed that apprenticeship, but went on to carry out mechanical work, ultimately setting up his own business as a mobile motor mechanic.  He also operated a tow truck, which he had purchased previously and kept after the relevant accident.

7       In addition, the plaintiff obtained a contract with Melton Bacchus Marsh Taxicabs Pty Ltd and undertook work servicing the fleet operated by that entity.  Thus, by the time of the accident, he was undertaking some private mechanical work, the taxi work, and had purchased a tow truck. 

(ii)       The plaintiff as a witness

8 I could not describe the plaintiff as a reliable witness. His evidence about his financial affairs was, to put it mildly, confusing. Indeed, I had cause to issue to him and to his wife certificates pursuant to s128 of the Evidence Act 2008. There is no argument but that the plaintiff did not lodge tax returns for a number of years. There are potential problems in relation to bankruptcy matters. I could not say that I found the plaintiff to be a reliable witness in relation to matters pertaining to his business, either before or after the accident, or as to the amount of work he has performed. Generally, his financial affairs could be described as being in a mess. His wife impressed me as being a woman who had endeavoured to get his affairs into some sort of order. Some steps have been taken in relation to previous omissions and problems. In any event, s128 certificates were issued by me and this enabled evidence concerning the financial state of affairs to be received.

9       I have some serious doubts as to how forthcoming the plaintiff was in relation to work activities and income.  I appreciate that his illiteracy and lack of education may have contributed to any confusion.  However, I say now (and I shall return to it) that the plaintiff has fallen a considerable distance short of convincing me that economic loss constitutes a major basis upon which to bring this application.  That is because it is difficult indeed to arrive at any satisfactory conclusion as to the plaintiff’s actual earnings before or after the accident.  I note from the histories contained in some medical reports that he has made something in the order of four attempts to return to work since the accident.  He gave sometimes internally conflicting evidence concerning the operation of his business after the accident, whether it made money, and indeed whether he even paid the people working for it.  His wife’s evidence in this regard was also not completely satisfactory.  His affidavit of 17 March 2014 indicates that he has tried to do some mechanical work on his cars at home.  It would seem that he had attempted to keep his towing business going, and there are some Facebook entries concerning it.  I accept that, because of his illiteracy, other people may have made those entries for him.  Documents completed on his behalf for the purposes of a bank loan and in relation to bankruptcy proceedings, which documents purport to disclose considerable earnings, add to the overall confusion and uncertainty.  In summary, his credit did not emerge unscathed in relation to financial matters and the amount of work performed by him before or after the accident.  The same could be said in relation to his post-accident activities generally and the consequences of injury alleged by him.

10      Were this an application pursuant to the Accident Compensation Act 1985 and I was obliged to rule on whether the plaintiff had established the legislative requirements for leave to pursue pecuniary loss damages, my conclusion would be that he had not discharged the burden of proof. However, to state the obvious, this is not such an application. What I would say is that matters to do with income, work activities and activities generally have damaged his credit and reliability and that alleged financial losses in this regard will not play a prominent, if any, part in my consideration of discharge of the overall burden of proof. Further, the damage so done also impacts upon the plaintiff’s application in the broader sense.

11      Of course, matters of credit and reliability play a significant role in an application such as this.  As was said by Brooking JA in Palmer Tube Mills (Aust) Pty Ltd & Anor v Semi (1998) 4 VR 439 at 448:

“Moreover, in ‘serious injury’ applications the credit of the applicant is of great importance…”

Overall, I do not regard the plaintiff as being a good, credible historian.  His reliability has been damaged.

(iii)      The injury, its diagnosis and treatment

12      As stated, the transport accident occurred on 7 April 2010.  Following the accident, the plaintiff was aware of pain in the neck, low back and left knee.  He was taken home, where he collapsed, and thereafter went to the Melton Health Medical Centre, before being transported to the Royal Melbourne Hospital.  His head and cervical spine were the subject of a CT scan.  There were also x-rays taken of his pelvis, chest and both knees, all of these studies being normal.

13      Following this, the plaintiff was discharged into the care of his general practitioner.  Thereafter, he seems to have attended the Scott Street Medical Centre in Melton.  His initial complaints were of neck pain and insomnia.  He was also suffering from panic attacks, dizziness and the like.  He attended that clinic frequently.  His complaints went on to include back pain, along with hip and bilateral leg pain.  A CT scan of his lumbar spine was performed on 21 July 2010.  This revealed an un-united right L5 pars defect, but no disc herniation, neural compromise or facet joint arthropathy.  A CT investigation of the cervical spine proved normal.  He was treated with medication.  A report from the Scott Street Medical Centre of 4 April 2012 refers to the plaintiff having suffered a soft tissue injury to the neck; a soft tissue injury to the lumbar spine, including aggravation of L5 pars defect and including referral of symptoms to the left leg; left knee injury; shock, trauma and psychological injury.  Ultimately the plaintiff was referred to Mr Arun Sharma, occupational therapist.  This was because of the plaintiff’s continual depression and also for physiotherapy.

14      On 21 November 2011, the plaintiff was seen by Dr David Freilich, neurologist.  Neurological examination was essentially normal, although the plaintiff’s left leg was difficult to examine because of knee pain.  The plaintiff was also put on medication for headache, which complaint seemed, in the opinion of Dr Freilich, to be out of proportion to the head injury suffered.  The plaintiff was taking medication by way of Endep and visiting his general practitioners on a regular basis, with severe to moderate lower back pain, numbness and tingling in the lower limbs and insomnia related to anxiety.

15      It is apparent from the report of the Scott Street Medical Centre that the plaintiff was referred to Mr Justin Hunt, orthopaedic surgeon, in January 2012.  An MRI scan was performed, this revealing old Scheuermann’s Disease related changes in the mid and lower thoracic spine; non-compressive small posterocentral protrusion at L5-S1, with right L5 pars defect with minimal spondylolisthesis; and mild bilateral L5-S1 and L4-5 facet osteoarthropathy.  Mr Hunt was of the view that the plaintiff should be seen by a pain management physician.  I would add that no report from Mr Hunt was placed in evidence.

16      Whilst it seems that the plaintiff was initially seen by Mr Daniel Lee, he ultimately saw Dr Clayton Thomas, consultant in rehabilitation and pain medicine.  This referral appears to have been by Mr Hunt, with Dr Clayton Thomas seeing the plaintiff on 14 March 2012.  At this time, the plaintiff was under the care of a psychologist.

17      Dr Clayton Thomas noted that the plaintiff was reliant on a walking stick.  He found wasting in the left leg at both the calf and thigh level.  The impression formed by Dr Clayton Thomas was that the plaintiff suffered from a complex pain problem.  He found it difficult to explain the left leg wasting.  He suggested that the plaintiff try Lyrica by way of medication.  He thought that the plaintiff did not have a work capacity, but needed pain management treatment.  He recommended that the plaintiff attend Dorset Rehabilitation Centre, but apparently he failed to keep an appointment there.  The plaintiff’s complaints of back pain continued, and he was receiving scrips for Panadeine Forte from his general practitioner.

18      In the meantime, the plaintiff had been seen by Mr Russell Miller, orthopaedic surgeon, having been referred by Dr Sadhai of the Scott Street Medical Centre.  Mr Miller saw the plaintiff on 31 March 2011.  He formed the view that the plaintiff had suffered a left knee injury with post-traumatic chondromalacia patellae.  In relation to the lumbar spine, Mr Miller thought that the plaintiff had aggravated musculo-degenerative disease and suffered a musculo-ligamentous strain.  On 27 June 2011, the plaintiff underwent left knee surgery, apparently performed by Mr Miller, in the form of an arthroscopy.  This revealed a small tear of the posterior portion of the medial meniscus.  It also showed an area of chondromalacia patellae.  Mr Miller was of the view that this was at the mild end of the spectrum.  He also referred the plaintiff to Spinal Management Clinics of Victoria.  He felt that the prognosis in relation to the back injury was probably only fair.  Mr Miller placed some restrictions upon the plaintiff’s work capacity, these being in the nature of avoiding repetitive bending, lifting and the like.

19      Spinal Management Clinics of Victoria reported back to Mr Miller on 29 April 2011.  It is a somewhat complicated report, referring to the plaintiff as having been diagnosed with an Adjustment Disorder with mixed anxiety and depressed mood and having a complex presentation of significant pathology, multiple injuries, neurophysiological concerns and psychosocial distress.  He had severe sleeping problems and was very poor at coping with and accepting pain.  A Pain Management Program was recommended, but there seem to have been difficulties in relation to his attendance, because he had a panic attack on his way to an appointment.

20      The plaintiff had been referred to Mr Sharma, occupational therapist and acupuncturist, on 10 March 2011 and was referred again in March 2014.  As at that later time, he was complaining of constant pain in the low back, hips, left knee and left heel.  He had constant headaches and blurry vision, as well as sleep interference.  He complained of limited capacity in relation to walking, standing, sitting and driving.  Mr Sharma thought that the plaintiff’s condition had deteriorated and that he was still depressed due to his limited functional, social and earning capacity.  He had no capacity for employment because of his functional limitations, low energy levels, depression, fear of travel and work endurance.  His situation was further complicated by his frequent headaches, poor sleeping pattern and inability to relax.

21      The plaintiff was also referred for psychological and psychiatric treatment.  He first saw Mr Graeme Miller, psychologist, on 17 May 2010 and was diagnosed as suffering from mixed depression and anxiety.  Mr Miller was aware of the fact that the plaintiff had needed to attend a special school and considered that there was possible mild intellectual disability.  Apparently a course of treatment was given.  Subsequently, the plaintiff’s general practitioner referred him to Ms Krista Patti, psychologist, whom he saw on a few occasions.  Apparently his attendance was not all that regular.  He complained of a large number of symptoms such as disrupted sleeping patterns, flashbacks, panic attacks and the like.  Ms Patti thought that the plaintiff should receive regular psychological counselling, as well as taking anti-depressant medication and being under the care of a psychiatrist.  She considered his symptoms to be severe.  She thought that his anxiety was significant.

22      In more recent times, the plaintiff has been under the care of Dr Samir Ibrahim, senior consultant psychiatrist, who saw him on a few occasions during 2014.  Dr Ibrahim diagnosed an Adjustment Disorder with symptoms of anxiety and depression and prescribed various medications.  Dr Ibrahim was of the view that the plaintiff required psychotherapy from his psychologist.

23      The plaintiff has also been seen by a number of examiners for medico-legal purposes.  Dr Anthony Capes, industrial physician, saw the plaintiff at the request of his solicitors on 20 September 2012.  His diagnosis was of aggravation and possible acceleration of lumbar disc degenerative disease and facet joint arthropathy, together with a torn medial meniscus of the left knee, along with patellofemoral arthritis of that joint.  Dr Capes noted muscle wasting of the left thigh, which he believed to be the result of underuse.  He also thought that the situation was complicated by the existence of a Chronic Pain Syndrome and that the prognosis was poor.  He believed that the plaintiff had no capacity for any work and was very restricted in relation to daily living, as well as sporting and social activities.

24      Mr Thomas Kossmann, orthopaedic surgeon, has reported to the plaintiff’s solicitors on three occasions.  His initial report is dated 26 September 2012.  I note that the plaintiff told him that he had tried to return to work four times.  He had his own tow truck and a mechanics business, but went bankrupt.  He had not returned to regular work since the accident.  Mr Kossmann diagnosed a left knee injury, with a tear in the posterior portion of the medial meniscus and chondromalacia patellae.  He also diagnosed back pain, including facet joint arthropathy, with a reference to the thoracic spine.  In addition, there is a right L5 pars defect.  Mr Kossmann was of the view that the plaintiff’s conditions were not stable as at that time.  Due to the plaintiff’s ongoing symptoms, he suggested MRIs of the lumbar spine, both hips and the left knee.  Essentially, he could not comment in great detail.  He did believe that the plaintiff had no capacity for work and would probably require further treatment.  He also expressed the view that the injuries suffered in the accident had had a profound effect on the plaintiff’s social, domestic, recreational and sporting activities. 

25      Mr Kossmann provided a supplementary report on 23 July 2013.  By this time, the plaintiff had undergone an MRI scan of his lumbar spine, hips and left knee on 2 May 2013, the radiologist reporting to Mr Kossmann.  The conclusion in relation to the lumbar spine was that the radiology revealed a central to right paracentral protrusion at L5-S1 which posteriorly displaced the emerging right S1 nerve root.  I note, however, that in the more detailed Diagnostic Imaging Report the findings in relation to the L5-S1 protrusion are said to be suggestive of recent herniation.  Further, the protrusion was found to be minimally displacing the emerging right S1 nerve root.  The plaintiff also had mild bilateral facet arthropathy at L3-4 to L5-S1 inclusive.  Changes, including tearing, were detected in both hips, whilst the radiological changes in the left knee were consistent with the previous partial meniscectomy, but with no recurrent tear.

26      Having reviewed this radiology, Mr Kossmann made diagnoses consistent with the findings, but did not refer to the fact that the findings were suggestive of recent herniation or that the amount of displacement of the emerging right S1 nerve root was minimal.  He believed that the plaintiff should be referred to appropriate orthopaedic surgeons.  He did not feel that the plaintiff was a candidate for immediate surgery, although it remained a possibility.  Treatment in the form of an epidural injection and facet joint injections were needed more urgently.  Mr Kossmann also recommended arthroscopies on both hips and thought that the plaintiff had a high risk of developing advanced osteoarthritis.  Due to the joint effusion in the plaintiff’s left knee, he believed that an arthroscopy of that knee should be carried out as a matter of urgency.

27      Mr Kossmann reported for a third time on 17 February 2014, on this occasion having seen the plaintiff again.  The diagnosis of Mr Kossmann was of discogenic back pain on the basis of a central to right paracentral disc protrusion at the L4-5 level posteriorly displacing the emerging right S1 nerve root, together with the arthropathy revealed on the MRI.  Again, he does not seem to have referred to the fact that the amount of displacement of the emerging right S1 nerve root was minimal or that the signs were suggestive of recent herniation.  He referred to the tearing in the hips, along with an associated acetabular rim lesion and some mild bursitis on the left side.  He believed that there was a suspicion of re-tearing of the medial meniscus and also diagnosed a Chronic Pain Syndrome involving the lower extremities.  On this occasion, Mr Kossmann was of the view that the plaintiff’s injuries were substantially stabilised.  He required further treatment with pain medication, anti-inflammatories, physiotherapy and the like.  Mr Kossmann also recommended a course of injections.  He noted that the plaintiff was not very eager to undergo any operative interventions, and felt that, without surgery, the plaintiff’s condition would not improve in the near future.  He believed that the plaintiff had no work capacity, given the type of work that he had performed and the onerous restrictions that would now be placed upon him.  He again referred to the plaintiff having a Chronic Pain Syndrome.  Mr Kossmann described the plaintiff’s pathology in the lumbar spine, both hips and the left knee, as being significant.  The Chronic Pain Syndrome was the major obstacle preventing him from regaining a work capacity.  He noted that the plaintiff also had major problems with his social, domestic and recreational activities.

28      Dr David Murphy, consultant physician in rehabilitation medicine, has reported to the plaintiff’s solicitors on two occasions.  His earlier report of 9 November 2012 contains a detailed history.  At that time, the plaintiff was taking Mersyndol Forte, using eight per day and taking four at a time.  Dr Murphy carried out various tests, noting that straight leg raising was difficult to perform in both legs because it caused pain in the back and involuntary retraction of the lower limb muscles.  He felt that the plaintiff had persistent pain and very severe mood disturbance.  He was concerned about some suicidal ideation.  Dr Murphy diagnosed severe anxiety and depression, together with a Chronic Pain Syndrome, this involving likely aggravation of pre-existing structural changes in the lumbar spine.  He also noted headaches and the left knee injury.  He was of the view that the plaintiff was not capable of any work due to a combination of his psychological condition and physical status.  If the plaintiff improved to the stage where he could undertake some physical work, within reasonably comprehensive restrictions suggested by Dr Murphy, it was likely that he could not work beyond 15 hours per week.  There was also interference with his social and sporting activities.

29      Dr Murphy saw the plaintiff again on 14 February 2014.  The plaintiff described pain in both hips and groins and in the mid to lower lumbar spine.  He was largely inactive.  He suffered from some numbness in the left leg, worse in the morning. His sexual function was significantly disturbed.  At times, his left knee became swollen and there were some episodes of his knees giving way.  The plaintiff was continuing to take Mersyndol Forte, at times over eight tablets per day, and was also taking medication for depression.  Dr Murphy had available to him the MRIs of 2 May 2013.  His diagnoses were chronic non-specific low back pain; Chronic Pain Syndrome; surgically treated left knee injury; and a mixed anxiety/depression disorder.  (Dr Murphy also had available to him a report of Dr Lester Walton, consultant psychiatrist, who had arrived at this diagnosis.)  Dr Murphy was again of the view that the plaintiff had no current capacity for work and thought it unlikely that he would be capable of undertaking work in the future.  He also had a significantly reduced capacity for general activities. 

30      As is evident from the above, the plaintiff’s solicitors also organised for him to be examined by Dr Lester Walton, who reported on 30 October 2012.  The diagnosis of Dr Walton was that the plaintiff suffered from mixed anxiety/depressive disorder, pain disorder and Post-Traumatic Stress Disorder, these not being separate psychiatric entities, but coalescing into a single psychiatric syndrome.  Dr Walton thought that the combination of the plaintiff’s persisting pain and his psychiatric condition rendered him totally incapacitated for work.  He also noted that the plaintiff described a markedly restricted social and family life.

31      Dr Walton saw the plaintiff again on 4 February 2014.  Essentially his diagnosis remained the same.  He was of the view that the plaintiff was totally and permanently incapacitated for work because of his physical and psychiatric injuries.  In addition, there was quite striking social incapacity.  In his earlier report, Dr Walton observed that the plaintiff’s level of impairment was permanent, and essentially he repeated this in the later report.

32      The defendant has also had the plaintiff examined for medico-legal purposes.  Dr Chris Baker, occupational physician, saw the plaintiff on 28 February 2011.  His diagnosis was of soft tissue injuries of a musculoligamentous nature to the cervical spine and to the lumbosacral region.  He also noted the left knee injury.  He was aware of the pre-existing pars defect, but did not consider that there had been an aggravation of this.  He also recorded that there were post-traumatic stress symptoms.  He thought that, with the passage of time, the physical soft tissue injuries would have improved, but that there was a non-physical component to the presentation which was impeding rehabilitation.  He did not feel that the plaintiff was capable of undertaking sustained work in his area of employment at the present time.  The plaintiff required a multi-disciplinary pain management program.  After that, he should have been able to return, on a graduated basis, to his pre-injury duties.  However, the first stage of the rehabilitation process was the provision of a multi-disciplinary program to assist the plaintiff to manage his psychological and pain problems.

33      Mr Michael Dooley, orthopaedic surgeon, has provided two reports to the defendant. The earlier one is dated 23 April 2013.  He noticed some mild wasting of the left quadriceps muscle.  The plaintiff encountered some difficulties in carrying out straight leg raising, it being limited to 30 degrees and with attempts to passively flex the knees and hips being resisted.  Mr Dooley had available to him some radiological material, but, of course, this examination pre-dated the MRIs of 2 May 2013.  Essentially, Mr Dooley diagnosed some damage to the superficial articular surfaces of the patellofemoral joint.  He also felt that the plaintiff had sustained a soft tissue injury to the lumbar spine, but did not expect that this would result in major low back pain.  In addition, he noted that the plaintiff was receiving treatment from both a psychologist and a psychiatrist.

34      Mr Dooley observed that, from an orthopaedic point of view, the plaintiff had developed a Chronic Pain Syndrome and that, essentially, the symptoms from which he was suffering were greater than one would expect to see from the organic injury which had been sustained.  Mr Dooley thought that the psychological condition dominated the clinical presentation.  Also, from the orthopaedic point of view, the plaintiff would have difficulty with heavy, physical work and work involving a lot of kneeling and squatting.  Mr Dooley stated that the plaintiff had the physical capacity to carry out a wide range of light physical work and clerical-type duties (Mr Dooley does not appear to have been aware of the plaintiff’s illiteracy). 

35      Mr Dooley reported again on 18 December 2013, having been sent the radiology reports of 4 January 2012 and 2 May 2013.  He expressed the opinion that the more recent small right lumbosacral disc protrusion would have occurred spontaneously as part of the degenerative process.  He did not believe that the radiological findings could explain the constant intensity of the plaintiff’s pain and disability.  He believed that the plaintiff would be able to carry out a wide range of light physical work, clerical duties and domestic duties.  He remained of the opinion that the plaintiff’s psychological condition dominated his clinical presentation, expressing the view that it was a disservice to him to continue to treat his condition as though it was organically based.

36      Two consultant psychiatrists have seen the plaintiff at the request of the defendant.  Dr David Weissman saw him on 19 July 2011.  He detected some evidence of illness and pain behaviour.  He thought that the plaintiff was developing a chronic pain disorder, associated with psychological factors, and a general medical condition.  He implicated the accident.  Apart from the plaintiff needing to be seen by an orthopaedic surgeon, Dr Weissman thought that he would also benefit from seeing a clinical psychologist over a nine month period.  Dr Weissman was of the view that the plaintiff seemed to have no capacity for work and regarded his psychiatric prognosis as uncertain and guarded.  Whilst Dr Weissman thought that the plaintiff should be re-examined by an independent psychiatrist in approximately nine months to a year, in fact the plaintiff was not sent back to him.  Rather, on 7 February 2013, the defendant organised for the plaintiff to be examined by Dr Nicholas Ingram, consultant psychiatrist.

37      Dr Ingram’s summary was that the plaintiff had suffered chronic pain since the accident and had become limited in what he could do physically, including returning to work.  Psychologically, he had become depressed as a result of his chronic pain and his inability to work.  He was having frequent panic attacks, nightmares and the like.  Dr Ingram diagnosed a chronic Adjustment Disorder with depressed and anxious mood.  He also diagnosed a Post-Traumatic Stress Disorder and a panic disorder, the impairment resulting therefrom being a primary consequence of the accident.  Dr Ingram went on to report that the plaintiff’s main problem was his chronic pain.  It may be that he had developed a pain syndrome.  Dr Ingram described it as a real condition with physical, psychological, environmental and cultural elements all contributing to its development.  He thought that there was no evidence that the plaintiff was exaggerating his symptoms, although his psychiatric problems could be making his perception of the pain worse.  Due to the plaintiff’s pain, he had been unable to return to work, which was a major loss to him, and he may need help in finding other areas of employment.

38      Dr Ingram also thought that the plaintiff had significant depression and anxiety, which needed treatment from a psychiatrist.  Various medications should be tried.  He noted that the plaintiff had very negative thoughts about harming himself and thought that he would benefit from some supporting psychotherapy.  In relation to work, Dr Ingram thought that it was mainly the plaintiff’s pain that prevented him from working, although depression, loss of motivation and poor concentration would also make it difficult.  Further, he was of the view that psychological factors were interfering significantly with the plaintiff’s ability to enjoy his domestic and leisure activities.

39      There was also before me a report from Mr Dylan Pereira, occupational therapist, this being dated 6 February 2012.  Whilst this is a quite detailed report, it discusses such things as the commencement of a pain management program and, in the circumstances, does not take matters much further.

40      Obviously, in terms of diagnosis, including both the physical and mental aspects of the injuries received in the accident, this is not a simple case.  However, I am satisfied that the plaintiff has sustained a physical injury to the low back in particular and also to the knee, hips and cervical spine.

41      In relation to paragraph (a) of the definition of serious injury, it does not seem to me that the consequences of the injuries received to the left knee and cervical spine are sufficient to satisfy the statutory test.  That is so even when allowance is made for what was said in Richards v Wylie.  Accordingly, and whilst such injuries may play some part in any behavioural disturbance or disorder from which the plaintiff suffers, I shall leave them to one side.  The plaintiff has sworn in his affidavit of 13 March 2014 that his lower back remains the most painful of his injuries and it gives him “the most grief”.  Further, in his closing address, Mr Seccull conceded that the claim in respect of the left knee was not as strong as that in respect of the low back and that the same could be said in respect of the injury to the cervical spine – see Transcript (hereinafter referred to as “T”) 242 and 243.  I would agree with that.  The medical evidence simply does not provide the required support to satisfy the statutory test.

42      In relation to the plaintiff’s lumbar spine, I am satisfied that the plaintiff suffered a physical or organic injury to it.  This has been described in various ways by medical examiners.  The plaintiff’s treating general practitioner, Dr Gurusinghe of Scott Street Medical Centre, has diagnosed it as a soft tissue injury including aggravation of L5 pars defect and including referral of symptoms into the left leg.  Mr Russell Miller described it as a musculoligamentous strain to the lumbar spine and aggravation of degenerative disease therein.  Once supplied with the MRI scan of 2 May 2013, Mr Miller stated the opinion that the plaintiff’s lumbar spine pathology was probably pre-existing and may well have been aggravated by the accident, or there may have been further superimposed injury.  Dr Anthony Capes stated that the plaintiff appeared to have aggravated and possibly accelerated lumbar disc degenerative disease and facet joint arthropathy by reason of the accident.  Mr Thomas Kossmann made the diagnosis of discogenic and mechanical back pain on the basis of central to right paracentral disc protrusion at L5-S1 displacing the emerging right S1 nerve root and mild bilateral facet arthropathy at L3-4 to L5-S1.  Of course, this was essentially the radiologist’s report following the MRI of 2 May 2013, which had been recommended by Mr Kossmann, but without the references to recent herniation or minimal displacement of the emerging nerve root.  Mr Kossmann also referred to discogenic and mechanical back pain.  Dr David Murphy described the condition as aggravation of pre-existing structural changes in the lumbar spine.

43      Examining on behalf of the defendant at a comparatively early stage, Dr Chris Baker diagnosed soft tissue injury of a musculoligamentous nature to the lumbosacral region.  Mr Michael Dooley, also examining on behalf of the defendant, stated that the mechanism of the accident would be consistent with the plaintiff sustaining a soft tissue injury to the lumbar spine.  Having viewed the MRI scan of 2 May 2013, he expressed the view that there could have been a more recent small right lumbosacral disc protrusion which, in his opinion, would have occurred spontaneously as part of the degenerative process.  However, he also pointed out that the MRI scan in January 2012 showed a small posterocentral disc protrusion at the lumbosacral level with no obvious nerve root compression.  Mr Dooley is the only examiner who has suggested that the more recent disc protrusion would have occurred spontaneously as part of the degenerative process.

44      The balance of the medical evidence, including the radiology, seems to me to point to the conclusion that the plaintiff suffered the aggravation of pre-existing degenerative disease in the lumbar or lumbosacral spine with a small right lumbosacral disc protrusion.  Whilst the MRI of 2 May 2013 does indicate that the small protrusion at L5-S1 is suggestive of recent herniation and minimally posteriorly displaces the emerging right S1 nerve root, whereas that of 4 January 2012 shows a small postero-central protrusion at that level but causing no direct lateral nerve root compression, I am not prepared to accept the opinion of Mr Dooley that what was shown on the more recent MRI is something that would have occurred spontaneously as part of the degenerative process.  In his report of 17 February 2014, Mr Kossmann, whilst not spelling out an opinion contrary to that of Mr Dooley in this regard, clearly seems to me to be proceeding on the basis that what has been shown on the radiology is related to the original accident.  Whilst I appreciate the force of Mr Dooley’s opinion, in the absence of any further incident of injury it seems to me that the accident, by aggravating the plaintiff’s pre-existing degenerative disease, in turn played a role in the nature of the small protrusion found in the relevant area of the back.

45      Whilst the injury to the plaintiff’s back was the subject of more evidence than any injury to the hips, nevertheless Mr Seccull made it clear that reliance was also placed upon the hip injuries.  Whether they were to be assessed collectively or separately is not entirely clear, but consideration is required to be given to them.

46      In this regard, I note that Dr Clayton Thomas reported that both hips were “slightly irritable” when examined, but had a good range of movement.  He also looked at the MRI of the hips and was not convinced that there existed true CAM lesions.  He did not see the subsequent MRI.  The treating orthopaedic surgeon, Mr Russell Miller, seems only to have concerned himself with the injury to the left knee and that to the lumbar spine.  However, in his supplementary report of 30 August 2014, and having viewed the MRI scan of 2 May 2013, he expressed the view that the right hip pathology was likely to be pre-existing, but contributed to by the accident or a further injury caused.  However, he noted that, when seen by him, the plaintiff gave no clear history of right hip problems.  Therefore he believed it unlikely that the condition of the right hip would be regarded as being accident related.  To Dr Capes, the plaintiff complained of low back pain radiating to the hip area and Dr Capes does not seem to have viewed or assessed the hips as representing a separate injury.

47      The reports from the Scott Street Medical Centre contain some reference to Mr Hunt finding irritability of the hips with significant pain reproduction.  It was also apparent that Mr Hunt organised radiological investigation, and there is reference in the report of Dr Gurusinghe to the fact that “MRI findings and x‑rays on the hips showed some very mild changes of femoroacetabular impingement but the images were essentially normal”.  Mr Kossmann, examining for medico‑legal purposes, felt that the plaintiff had significant injuries in both hips and needed to be referred to an orthopaedic surgeon so that hip arthroscopies could be performed.  He did not feel that the prognosis was good.  Mr Kossmann repeated that the plaintiff may benefit from an arthroscopy of both hips, but also observed that the plaintiff did not seem to be very enthusiastic about undergoing any operative intervention.  He repeated his opinion that the plaintiff had significant pathology in both hips.  Dr David Murphy, also examining for medico‑legal purposes, found on examination a mild degree of irritability with hip rotation, but this observation seems to have been made prior to the radiology commented upon by Mr Kossmann.  In his later report of 28 February 2014, Dr Murphy did record the radiological findings of 2 May 2013, but did not diagnose any hip injury or injuries as such, referring to chronic non-specific low back pain.

48      To Mr Michael Dooley, orthopaedic surgeon examining on behalf of the defendant, the plaintiff seems to have made no specific complaint concerning hip pain.  He had referred to ongoing and severe back pain and to bilateral lower limb pain and left knee pain, in addition to some neck pain.  Not surprisingly, the diagnoses of Mr Dooley were confined to soft tissue injuries to the lumbar and cervical spines and impact injury to the left knee.  When the radiology reports of May 2013 were forwarded to Mr Dooley, he commented that the findings in the hips, or perhaps more specifically, the right hip, were not unusual and that the radiological findings generally could not explain the constancy and intensity of the plaintiff’s pain and disability.

49      The situation in relation to the plaintiff’s hips is not entirely clear and certainly, at least at times, his complaints to medical examiners concerning them seem to have been somewhat limited.  His initial affidavit of 17 January 2013 contains a reference to neck pain, back pain and pain in the left leg, presumably the knee injury, but little, if any, reference to pain in the hips.  His affidavit of 13 March 2014 contains a reference to pain in the hips, although it is stated that the lower back is the most painful of his injuries.  There are references to hip pain in his affidavit of 30 September 2014.  However, the overall impression is that the symptoms relating to the lower back injury are of greater consequence than those relating to the hips.  I am satisfied that, as confirmed by the radiological investigations, there is pathology in each hip and that such pathology is in the nature of the impingement and tearing mentioned.  The magnitude of the symptoms emanating from it is another matter.

50      As shall be discussed, the plaintiff’s credit plays a significant role in relation to his physical injuries, and as to whether he has discharged the burden of proof in that regard.  Credit also looms as a significant factor in relation to his alleged mental injuries.  My findings as to the physical injuries shall also embrace the hip injuries, even if they did receive considerably less attention than the low back injury.

51      I am satisfied that the plaintiff’s physical injuries have produced some consequences which are long term within the meaning of the Act.  Mr Kossmann has expressed the view that the plaintiff’s incapacity will continue for the foreseeable future, although he has commented upon the fact that the plaintiff may profit from an injection into his lumbar spine and an arthroscopy of his hips.  Dr Capes has described the plaintiff’s prognosis as being poor, although his diagnosis includes reference to a Chronic Pain Syndrome.  In his report of 23 April 2013, Mr Dooley expressed the opinion that the plaintiff’s orthopaedic injuries had stabilised and was prepared to make an evaluation of permanent impairment on that basis.  His later brief report of 18 December 2013 does not alter that, although he refers to the fact that the plaintiff’s psychological condition dominates his clinical presentation.  In any event, I am prepared to accept that the plaintiff’s impairment as a result of orthopaedic injuries is long term within the meaning of the Act.

52      In relation to any mental impairment suffered by the plaintiff, the general view of those examining him is that he suffers from a mixed anxiety/depressive disorder, chronic Adjustment Disorder, Post-Traumatic Stress Disorder or the like.  However, I shall return to a consideration of the plaintiff’s mental state after summarising other developments since the accident, including their impact upon his credit and reliability.

Other developments since the accident, matters related to income and possible employment and other credit matters

53      I have already made some reference to these in paragraphs 7 to 10 above.  I shall now discuss them in greater detail.  I should add that I will at all times bear in mind the plaintiff’s level of education and the fact that he is illiterate.  Nevertheless, he must still take at least a considerable amount of responsibility for affidavits sworn on his behalf, documentation that has been prepared in his name and the like. 

54      In his affidavit of 21 January 2013, the plaintiff has sworn that, following the accident, he tried to continue running his business using other workers to perform the physical labour and with his wife doing the bookwork.  However, this was unsuccessful.  The business eventually failed.  He was declared bankrupt in 2012.  He swore that he had not performed any physical work since the accident.

55      There was some expansion on this in the plaintiff’s further affidavit of 17 March 2014.  In that affidavit, he swore that he had always worked hard and long hours as a mechanic, but his poor account keeping caused him difficulties and embarrassment.  Although this was principally due to his inability to read and write, he was aware that his failure to lodge tax returns was wrong, and he felt regretful and ashamed of this.  He described the ongoing pain and disability which he was suffering.  There is then included a quite lengthy paragraph, the last two sentences of which have obviously been added in handwriting.  This paragraph reads as follows:

“I have been unable to do any significant mechanical work since the swearing of my last affidavit.  People still occasionally drop by with their taxis or cars seeking mechanical advice, which I am happy to give, but I have not done any significant mechanical or paid work for them because of the restrictions caused by my accident related injuries.  I have tried to do some mechanical work on my cars at home such as changing oil, brake pads and tyres a few times, but I found I had to stop due to mainly back pain.”

56      The last sentence set out above is one of those in handwriting.  There is then another further handwritten sentence which is extremely difficult to read, but which I was told, and accept, is as follows: “I then had increased pain for a day or so.”

57      Further, in paragraph 20 of that affidavit, the plaintiff has sworn that overall he feels like a total wreck because of his ongoing pain and restrictions; that he is no longer physically capable of living a normal life; and that he cannot work or see what work that he could do, given his injuries.

58      The plaintiff swore a third affidavit on 9 April 2014.  It is quite apparent that he had then recently been shown a number of documents which the defendant had provided to the plaintiff’s lawyers, these being Facebook printouts, company documents and loan agreements.  In this affidavit, the plaintiff has sworn that one of the Facebook pages, which is in his name, was set up by his wife.  Further, the plaintiff has sworn that his wife and eldest daughter write messages on his Facebook page regularly.  However, he does not know what they have written unless they tell him.  There is another Facebook page set up in the name of Hulks Towing, which was a company being operated by the plaintiff at the time of the accident.  In paragraph 5 of this third affidavit, the plaintiff has sworn that this page was set up by a friend, Mr Mark Bevis.  Apparently Mr Bevis explained to the plaintiff that it would be a good way to try and advertise his business, as he was desperate to try to keep it going, despite his physical restrictions.  The plaintiff’s wife and Mr Bevis have typed any messages on this page.  Some other people, who have the plaintiff’s password, have also put messages upon it and he has put up some photographs.  In paragraph 6 of the third affidavit, the plaintiff has sworn that Mr Bevis also set up for him a company called “Ernest Borg’s Complete Auto Services Pty Ltd”.  This was apparently so set up for insurance purposes.  The plaintiff has sworn that, because of his illiteracy, he relies on others to complete necessary forms.

59      The plaintiff then swore a fourth affidavit on 3 September 2014.  This basically relates to the ongoing pain which he was suffering and panic attacks which he had been experiencing.  There are also references to migraines, blurred vision and anxiety, together with details of medications that had been taken.  The plaintiff has also sworn that he had been unable to work since the swearing of his last affidavit and did not know what type of work he could do.  He had been carrying out light housework, looking after his pigeons, and occasionally travelling to pigeon race meetings, having been at four such meetings since the swearing of the third affidavit. 

60      Affidavits have also been sworn by Mr Bevis and by the plaintiff’s wife.  Amongst other matters, these relate to any business being carried on by the plaintiff.  Mr Bevis, a friend of the plaintiff’s, has sworn that he has some expertise in relation to social media, and suggested to the plaintiff that, if he could not work in his business, he should still try and run it.  He understood the plaintiff to be employing people to keep the business running.  Because he knew that the plaintiff was illiterate, he set up the Facebook page for Hulks Towing on or about 27 October 2011.  He also encouraged the plaintiff to have plenty of messages on the Facebook page to emphasise that the business was a going concern.  A second Facebook page for Hulks Towing was set up, but not by Mr Bevis.  He claims that he also recommended to the plaintiff that he set up a shelf company, and then set it up for him, this being “Ernest Borg’s Complete Auto Service Pty Ltd”.  Any assistance rendered by Mr Bevis ceased in approximately October or November 2011.  However, he has continued to see the plaintiff, and says that he has continued to struggle physically.

61      Apart from giving oral evidence, the plaintiff’s wife swore an affidavit on 28 May 2014.  This, like the affidavit of Mr Bevis, postdates the affidavit of the plaintiff of 9 April 2014 and therefore also postdates the provision by the defendant of the documents to which reference has been made.  In this affidavit, subsequently adopted by Mrs Schembri as being true and and correct, she stated that she was the estranged wife of the plaintiff, having separated in April 2014.  The affidavit contains various observations of the plaintiff’s apparent pain, depression and the like.  Mrs Schembri swore that, for about six months or so after the accident, she witnessed the plaintiff giving advice to people who came to the house with car problems.  He did some minor repairs, but could not complete them properly.  He also tried to employ others to work for him, “but this did not really work out”.  He had been unable to do any heavy work since the accident.  Mrs Schembri also swore that “I have not seen him work for many years and he has not earned any income.”  This had in turn placed the family under huge financial pressure, as well as putting pressure on the marriage.  Ultimately there was a separation, although the plaintiff seems to have attributed this to an affair between his second cousin and his wife – see T36.  The plaintiff also referred to sexual difficulties which he had been having.

62      Mrs Schembri swore that, due to the plaintiff’s illiteracy, she filled out most of the family paperwork for him.  She had filled out some bank applications, although was uncertain if she had done all of them.  She also recalled that the plaintiff had assistance from others, including staff at Centrelink, in relation to his paperwork.  Mrs Schembri also swore that she had set up the plaintiff’s Facebook page, and that she and her eldest daughter had put messages upon it.  She stated that the company Facebook page had been set up with the assistance of Mr Bevis and her son, Brandon.  Although messages may look as though they are from the plaintiff, Mrs Schembri had never seen him enter any messages himself.  He always had to ask for assistance in relation to the use of the computer.  Mrs Schembri swore that she had entered messages without his knowledge. 

63      Finally, an affidavit of the plaintiff’s accountant, Mr Brian Carey, has been filed.  This affidavit, dated 24 June 2014, patently also postdates the production of the various documents by the TAC to the plaintiff’s solicitors.  That affidavit is to the effect that the plaintiff consulted Mr Carey with instructions to prepare income tax returns for the financial years ended 30 June 2010 and 30 June 2011.  Various business records and the like were produced.  The plaintiff did not provide Mr Carey with any records to prepare returns for any other years before or after that.  He did not provide Mr Carey with any PAYG summary or group certificates from the defendant in order to enable him to include any declarable income for those years or to prepare any further returns for other years.  Mr Carey further swore that recently the plaintiff had approached him with a printout from the defendant showing benefits paid to him.  He was inquiring as to whether any further tax returns should be prepared in relation to any income he received from the defendant.  Mr Carey has stated that he has checked with the Australian Taxation Office and there are no PAYG summaries or group certificates for Mr Schembri for the 2010, 2011 or any other financial years, whether such payments be from the defendant or from any employer.  In the circumstances, Mr Carey stated that it was difficult to prepare a return so as to declare any income from the defendant.  He could prepare amended returns for the 2010 or 2011 financial years or for any other year if he was provided with the appropriate payment summaries.  The printout from the defendant is exhibited to the affidavit of Mr Carey and shows substantial weekly benefits paid by the defendant from 12 May 2010 until 6 April 2013.  An amount payable by way of an impairment lump sum benefit in 2013 is also included.

64      I turn now to the oral evidence of the plaintiff concerning earnings, work activities since the accident and the like.  As this was one of the central issues in a complicated case that ran over four days, I shall deal with it in some detail.  As stated, the plaintiff adopted his affidavits as being true and correct, confirming this at the outset of cross-examination – see T30.  It would seem that, from approximately 2008 onwards, Mrs Schembri was doing the record keeping, the mechanical business operated by the plaintiff having started in 2004.  The plaintiff gave evidence that, until 2010, he had no idea that he was supposed to pay income tax or file a tax return.  In 2010 he was told by his wife about these matters.

65      The plaintiff believed that, in 2008, he was not earning enough money to have to pay tax – see T50.  The first time he had any discussion with anyone concerning tax was in 2008 when he spoke to Mr Carey, the accountant.  When his business really started taking off, he had used the services of a bookkeeper.  This appears to have been in approximately 2004, which does not sit particularly comfortably with the belief that, in 2008, he was not earning enough money to have to pay tax.  In one of several confusing pieces of evidence, the plaintiff agreed that he knew that he had to pay tax in 2004 and was keeping records – see T51 and 52.  If he did some work, he would issue a receipt for payment received and provide the receipts to the bookkeeper.  He would also provide receipts for items purchased and the like, but did not file any income tax returns between 2004 and 2009.  He then altered his position somewhat by saying that he started getting the bookkeeping done, not in 2004 but when the business was registered, which seems to have been when he met his wife and presumably in approximately 2008.  He then said that, from 2004 to 2009, he knew that he should lodge a tax return, but did not know how to do it – see T55.  He also said that between 2004 and 2010, he had no idea what an accountant was or did, although earlier stating that he had spoken to Mr Carey in 2008.  He further claimed that a property which he purchased in 2004 for $150,000 was in fact bought by his parents and he was paying them back.  The plaintiff also said that he was paying back money to Centrelink, he having apparently received a single parent pension, but at some stage having informed Centrelink that he was working.  The circumstances surrounding this seem to have been particularly complicated, also apparently involving the question of whether the plaintiff was receiving the single parent pension whilst living with his former wife and children.  The plaintiff denied that he had been receiving money fraudulently and that such a pattern of behavior had continued up to the present date.  However, it would seem that some money was required to be refunded to Centrelink, this apparently being in the order of $21,000. 

66      The plaintiff was then taken to a loan application made by him to the National Australia Bank (“the NAB”) in May 2011 – see T64 and following, and remembering that the accident occurred on 7 April 2010.  On the Customer Particulars Report in respect of the loan, under the heading “Sundry Assets”, there is an entry, “home contents:  $650,000”.  The plaintiff said that this was correct.  The application also shows that the principal residence of the plaintiff was worth $250,000 and another home, which he was apparently purchasing, was worth $331,000.  Further, the contents of the form indicate that the plaintiff was employed full time, and had been since 1 August 2007.  Ultimately the plaintiff agreed that he had told the bank that, as at May 2011, he was employed full time so that he could get the money and pay off his debts.  He admitted that this was a lie.  In the form there was also a denial of any financial difficulty in the previous two years.  He then said that it was his wife who had filled in all this paperwork.  In relation to full time employment, he also said that, because he was getting money from the defendant, he classified that as still working.  I note in passing that, under the heading “Employment Details”, the plaintiff described himself as a heavy truck driver and tow truck driver employed by Melton Bacchus Marsh Taxicabs. 

67      It would also appear that, on his 2010 tax return, the plaintiff disclosed net income from his business of just under $12,000, but nothing in relation to money received from the defendant.  The same situation prevailed in the 2011 financial year, where the only income declared was $71.  The plaintiff’s explanation was that he left everything to his accountant.  When it was put to the plaintiff that his accountant had sworn that the plaintiff had never given him records for any period prior to the 2010 financial year, the plaintiff said that he had given them to the lady who did the bookkeeping.  Her car had been broken into and the records taken – see T72.  He also stated that the accountant had told him that he need not worry about tax in relation to payments from the defendant because it had already been deducted.  The plaintiff continued to maintain that he had given all the required documentation to Mr Carey, his accountant. 

68      In relation to his work with Melton Bacchus Marsh Taxicabs, the plaintiff effectively said that he had been with that entity as a subcontractor and had attended virtually every day (I understood this to mean before the accident).  However, he had not been there for the 13 months prior to filling out the NAB application for loan form.  The tow truck which he had driven was owned by the plaintiff.  In relation to the loan sought from the NAB, it was for $275,000 for which the repayments would be just under $2,000 per month.  It was also put to the plaintiff that the loan form indicated that the value of the tow truck was $35,000 and not the $100,000 which the plaintiff had told the Court.  It was again put to him that the loan form clearly indicated that there were two types of assets being listed, namely one for two houses and the tow truck and the other for $650,000 worth of home contents.  Further, the NAB loan form indicated that the plaintiff was paying just over $3,300 per month for loan repayments.  After the new loan came into operation, repayments would be in excess of $3,800.  In each instance, $300 in respect of credit cards was also added.

69      The plaintiff also stated that he had paid off the loan from his mother and father by 2011.  I might say that the situation with money and the plaintiff’s parents is somewhat complicated and it seems as if some court action by them against him is either contemplated or imminent.  However, the plaintiff did say that he had paid them $150,000 over approximately six years between 2004 and 2010 and that they claim that they are still owed a similar amount – see T84.

70      In relation to the tow truck, the plaintiff obtained this approximately 18 months before the accident.  He also claimed to have obtained a loan of $25,000 for the tow truck, but spent an additional $75,000 on it.  This was in addition to repaying the loan to his parents and supporting five children.  To add further confusion to the financial situation, I note that the NAB loan form contains the assertion that the plaintiff’s gross monthly income as at May 2011 was $6,916.67.  Further, the plaintiff stated that the amount that he had earned in the nine months prior to the accident was the most that he had earned in the years preceding it, but that amount was shown on his tax return as being just under $12,000.  He agreed that the most money that he had earned from 2004 onwards was $11,975 in a year – see T88.  As was pointed out by Mr Smith, this effectively meant that in the six year period prior to the accident the plaintiff had earned a total amount of no more than $75,000 but had paid $150,000 to his parents and some $75,000 maintaining and improving the tow truck.  In answer to questions of mine, the plaintiff then said that there had been extra money not referred to in the tax return which came from his fiancée, who was paying it out of her single parent benefit.  The plaintiff denied that he had done cash in hand jobs.  The plaintiff also referred to a document which indicated that in six months he made $60,000.  He stated his belief that this document came from Mr Carey, which certainly does not fit in with what is contained in Mr Carey’s affidavit – see T93.

71      When pressed further about the fact that the NAB loan application showed that the plaintiff was earning approximately $84,000 a year in 2011, his explanation was that he tried to go back to work, but could not.  He had other people working for him and the business was still going.  Therefore what he meant was that he was earning $7,000 a month out of the business when other people were working for him – see T94.  It was then put to him that his 2011 tax return showed an income of $71.  He said by way of part explanation that he was getting $1,400 a month rent from one of his two properties.  The plaintiff then referred to money that he was receiving from the TAC, but it was put that this would have totalled approximately $3,000 per month.  The plaintiff agreed that, in March 2011, he had bought a second house for $331,000.  In attempting to explain the sizeable loans that he had taken out and was required to service, the plaintiff stated that he also had the present Mrs Schembri living with him by this time.  However, he agreed that her only income was a disability support pension.  When the near impossibility of the financial figures was put to the plaintiff, he reminded Mr Smith not to forget that he still had the tow truck going and had people driving it.  However, if that be the case, he could not explain how his total income for the 2011 year was $71.  He denied that he was getting substantial income over and above what was declared in his income tax return.  Indeed, he said that the tow truck and the work with the taxis had been bringing in a lot more than $750 per week – see T95.  He also said that, when applying for the two bank loans, he took with him information from his books of account provided by Mr Carey.  It was put to him that Mr Carey had known nothing about the TAC payments until mid-2014, a proposition with which the plaintiff agreed, and that would mean that the figure of $83,000 a year which the plaintiff claims he was earning from the tow truck business could not have included TAC payments.  He further agreed that, in the nine months before his accident, he earned $12,000 from the tow truck business.  Indeed, at one stage, the plaintiff swore as follows:

“I'll be honest with you, I don’t know how much I earned a year.” 

See T103.

72      He agreed that, in the year after the accident, he earned $70,000 a year more from running the tow truck than he had before the accident, although he added that he had other people running it for him.  However, he said he later closed down the business because people were pocketing the money.  He agreed that the business was doing better after the accident, saying that he was not doing everything.  The only reason that he closed the business was that people he had engaged to do work for him had been dishonestly doing private jobs.

73      The plaintiff had sworn in his affidavit of 21 January 2013 that he had tried to continue running the business using other workers, but this was unsuccessful, the business eventually failed and the plaintiff was declared bankrupt in 2012.  The plaintiff stated that the bankruptcy did not occur until after he ceased being responsible for the taxi work. 

74      In relation to his bankruptcy, the plaintiff was apparently sent bankrupt by an entity called A1 Autos, to which he owed money for car parts.  He stated as follows:

“… when I was getting people to work for me in the mechanics shop they were ordering parts for their own cars, which I didn’t realise … for their own thing, which I found out it was too late, I was that far in debt.” 

See T109

75      The plaintiff was then taken to extracts from a document completed pursuant to the Bankruptcy Act 1966, which form included a declaration that the particulars set out in it are correct. The declaration, dated 14 May 2012, was signed by the plaintiff and also by his wife, who had assisted him in relation to completion of the form. He agreed that his wife had read it carefully to him and that he had signed it. In this form, the plaintiff had given his occupation as being “unemployed”, this not sitting particularly well with the information given to the NAB. As earlier stated, part of the plaintiff’s explanation for that had been that, because he was receiving payments from the defendant, he believed that effectively made him employed as a tow truck driver. He does not seem to have been under a similar misapprehension when completing the bankruptcy form. His explanation was that he was more depressed when he was filling in the bankruptcy form. He also said that, in 2012 and at the time of the bankruptcy situation, he still had the tow truck, but it was in his driveway. He had lost the taxi contract and was not working at all.

76      It was then put to the plaintiff that, in the bankruptcy form, he had declared that he had the two houses in Melton but no other items of value, so that there was no reference to the $650,000 worth of home contents that had been referred to in the application for a loan from the National Australia Bank.  When the plaintiff again referred to items of value such as the tow truck, it was pointed out that, in the bankruptcy form, the valuation which he had put on that was $25,000.  There was then further confusion in this regard as the plaintiff said that his total assets may have been $650,000 (as I understand it).  My overall conclusion in relation to the $650,000 worth of home contents is that it is simply erroneous.  It makes little financial sense.  As I said at T125–126, I am satisfied that it is a wrong entry on the form, but have reached no conclusion as to how it came to be there.

77      In the bankruptcy document, the plaintiff’s wife had filled in on his behalf that the business which he had operated at any time in the previous five years was “Mick’s Mechanical Repairs/Hulks Towing”.  The plaintiff had said that he was not registered with the Tax Office for GST, explaining that he did not make the threshold, although whether or not this fits in with other evidence concerning how well the business was going is debatable.  It was pointed out that the document contained the assertions that the business started operating in January 2004 and ceased on 10 April 2009.  The plaintiff then denied that he had finished operating his business as a mechanic a year before the relevant accident.  He also said that, after the accident, he did try to keep the tow truck going and hire people to keep the business going.  It was put to him that there was no reference in the bankruptcy document to the plaintiff earning $83,000 per annum, as indicated to the NAB in May 2011, or making $69,000 in a period of some months prior to the accident.

78      It was also put to the plaintiff that he knew that he had been receiving TAC benefits because he was unable to work, a proposition with which he agreed, but he had given evidence that he had continued to operate his business and in fact was getting more money from it after the accident than before it.  He then disagreed that he was getting more money post-accident, but he had wanted the business to keep going as long as it could.  He had not been told by the TAC that, because it was paying him, he had to close any businesses down.  He said that he was not working, but was organising the businesses whilst he was in bed in pain.  He then denied that he earned more money after the accident than before it.  However, he insisted that he was not physically working at the businesses, but had other people doing that for him.

79      Cross-examination then switched to a different approach.  It was put to the plaintiff that he had presented to six different doctors between July 2011 and April 2013 as limping heavily and using a walking stick (no use of a walking stick being seen on surveillance).  The plaintiff said that he was embarrassed to be seen, for example, at a shopping centre with a walking stick, but used it when going to the doctors because the doctor would know why he had to use it.  The plaintiff said that there had been a significant deterioration in his condition since August 2013, this being a reference to the date of a relevant part of the surveillance.  His explanation for standing with his wife whilst she was talking to a friend for some 40 minutes on that day was, in essence, that he was not going to be rude to the person that his wife and he were talking to and, for example, go and sit down.  The thrust of this cross-examination concerned other evidence by the plaintiff that, even after taking painkillers, if he stood for 20 minutes the pain would be very bad, but bearable and that, if he had taken painkillers, the level of pain after standing for 20 minutes would be 8 out of 10.  He would usually try and find a chair to sit down – see T42 and 43.  Somewhat confusingly, earlier he had stated that he could stand for probably about an hour with the assistance of painkillers – see T39.  He also referred to heavy morphine medication which he had been taking, although it was put to him that the clinical notes and records of his doctor would not support this proposition.  He repeated that the reason that he stood for some 40 minutes with his wife talking to another person, without sitting on a chair or bench that was only 10 feet away, was that he did not want to be rude and that, if he had moved away, his wife “would have had a fit” – see T154.  She would have become aggressive if the plaintiff had moved away whilst standing at the shops. 

80      The plaintiff then stated that the tow truck which he had was a comfortable, automatic vehicle and he would use it to drive down to the shops because he loved it.  It was more comfortable than the Commodore and suited him better.  It was put to the plaintiff that he had been observed in December 2013 at the Vic Roads depot.  Apparently at that time he had bought a ute in his wife’s name, because he was bankrupt and was only allowed to have one vehicle.  It was unregistered when he purchased it, and he paid $2,600 for it.  He sold a station wagon to the person from whom he purchased the ute for approximately the same price.  He then essentially changed his position to say that he had no reason for purchasing it in his wife’s name, as it was only worth $2,600. 

81      In relation to the work that he had been doing on cars, he had looked at people’s cars, but was not technically working on them.  He gave them advice.  He was not allowed to work on a car and get paid for it, and did not do this. 

82      In relation to the debt to A1 Autos, which was in essence the debt that sent the plaintiff bankrupt, the amount involved was $14,000.  The plaintiff thought that this occurred at about the same time that he purchased the property for $331,000 – see T170.  However, it was put to him that the evidence displayed that the debt to A1 Autos was incurred in 2010, but the house was purchased in March, 2011.  Apparently A1 Autos pursued the debt when they found out that the plaintiff had bought a house, whilst keeping the other house and renting it out.  At about this time, he was paying off the debt to A1 Autos at the rate of $500 a month – see T171.

83      Cross-examination also focussed upon some of the plaintiff’s Facebook entries – see T167-169 and resuming at T172.  An entry of 7 May 2010 essentially reads that anyone who knows the plaintiff should “add him” as he may give a discount on mechanical repairs or a tow.  It was put to the plaintiff that this was two days after he had been penalised for talking on a mobile phone whilst driving his tow truck.  He said that this advertising was done by “Adam”, who apparently worked for him for a period.  An entry of 2 July 2010 states that the plaintiff drives a tow truck and can do mechanical work if people need “a tow or a fix up”.  A phone number is given and it is said that the plaintiff will help out in any way that he can.  There are also four photos of the tow truck on which is the name “Hulks Towing”, the words “24 hr towing” and a different mobile phone number.  This, stated the plaintiff, was also put on by Adam, but with his permission.  The plaintiff said that he was not making money from these activities and in fact they were costing him money – see T173, a proposition which does not sit comfortably with his earlier evidence.  The plaintiff asserted that he was not making money and that the only money which he received was by way of payments from the defendant.

84      On 24 August 2010 an entry posted on the plaintiff’s Facebook page and underneath his photograph says, “Another day to go make a dollar … grrr wish i had a money tree.”  The plaintiff stated this entry had been put on by his wife.  He said that he did not wish people to know that he was in fact effectively confined to bed and accordingly pretended that he was still working.  The plaintiff said that he had people working for him for nothing.  He had a tow truck driver working for nothing – see T174.  He pretended that he was working because he did not want to lose respect in the local community.  If someone did ring and ask for some mechanical work or a tow truck, he would admit that he was not working.  What would happen would be that he would give them advice and say that he had others working for him – see T174.  He gave evidence that “nearly 80 per cent of Melton that used to come to me for advice, fix the cars, get a tow truck, everything.”  He stated that he had a “very good business” running – see T175.  He was not working himself because he was in bed, and had the services of the tow truck driver, who worked for nothing.

85      The plaintiff denied that it was his intention in due course to buy another tow truck.  He was then taken to a Facebook posting of 27 June 2013 where there is a photo of his tow truck and the words “my first baby, we’ll have another”, followed by a row of exclamation marks.  At first the plaintiff said that that was when the business was still running, but the date of the entry was pointed out to him again.  It was also pointed out to him that this was 11 months after he had been made bankrupt.  He then said that he would not be buying another tow truck, whilst also giving evidence there was no law saying that he could not buy another tow truck, even though it was not his intention, or buy another workshop. 

86      The plaintiff was then taken in more detail to the events of 5 May 2010 when he incurred a penalty for using a mobile phone whilst driving the tow truck.  He stated that he was in the tow truck on that day, but got lost.  He was not planning to do anything with the tow truck, but was just going for a drive in it – see T177.  He got lost in the Laverton, Deer Park area.  In fact, he said he rang up “my boss”, told him that he was lost and needed someone to help him – see T178.  He was not using the tow truck for something to do with his boss’s business.  He confirmed that, when he got lost whilst driving the tow truck, he rang his boss from the taxi company.  He added that he used to drive the tow truck when he was depressed.  At two o’clock in the morning he used to go for a drive in it.  However, he never did work with it.  He claimed that, when depressed, he would drive the truck and listen to music, sometimes crying whilst driving.  He had wrongfully used the mobile phone because he was anxious and panicking that he was lost.  He also said that he had driven his wife to a psychic exposition at Taylors Lakes because his wife was physically or psychologically incapable of driving to that place. 

87      The plaintiff was then taken to more Facebook entries, this time in relation to social activities.  A posting of 13 March 2012 shows the plaintiff and a group of people at Mac’s Hotel in Melton.  He stated that these were friends that had helped him through his depression and further said “…That’s the time that I was using alcohol to get rid of my depression” – see T183.  He said that he had started drinking Johnnie Walker Black Label in order to get rid of the pain.  He agreed that postings, shown on different dates in 2010 and 2011, showed him smiling and apparently having a good time.  A series of photographs taken on 13 July 2010 depict the plaintiff acting in what could be described as an extravagant fashion at an establishment which he described as the Country Club and certainly not looking like a person who was experiencing great pain.  Effectively he could not explain why there was no record in the notes of his treating doctor, Dr Gurusinghe, concerning over indulgence in alcohol, although the plaintiff claimed that he told the doctor that he had drunk to the point of passing out, removing his clothes and catching a taxi.  He then corrected himself, saying that he did not tell the doctor that.  He said that he only went through a short stage of drinking, but then realised that he was hurting people such as his children, and ceased.  He also said that his being in public places, such as bars, occurred at a time when he was feeling good.

88      The plaintiff pointed out that the photographs depicting his more extravagant activity were taken within a couple of months of the accident.  However, it was put to him by Mr Smith that a photograph taken of himself and his wife at the Country Club was posted on 16 September 2012.  His response was to ask whether it was a crime to go out and see other people and sit and have a couple of drinks.  He said that, in September 2012, he was not having a good time, but just a happy time, because he had to get out.  He was trying to rid himself of depression.  Photographs taken of him at the Royal Melbourne Show in the same year were said to have been taken when he was on Mersyndol.  He had promised to take his daughter to the Show, so he did.  He also agreed that he had now started a new relationship, which had commenced approximately three months previously, but his new partner was aware of the fact that he had sexual problems.  In fact, she had moved in with him.  It was a very close relationship, which commenced quickly.  He said that the new relationship had made him a lot happier, because he had someone to look after him.  He was receiving help with his daily chores, his children and the like. 

89      Evidence as to developments since the injury and as to matters generally was also given by Mrs Shelley Schembri.  In cross-examination, she said that she could drive from Melton to Taylors Lakes, but usually with support, as she had an anxiety disorder.  In relation to the evidence of the plaintiff that, had he moved away and sat down during the 40 minute conversation in the shopping centre Mrs Schembri would have been very aggressive about it, she said that this was not true.  There was no problem with him going and sitting on a nearby bench.  In relation to the NAB loan application form, she said that it was incorrect that he was working full time in May 2011 and she did not know why that was on the form.  She also said that it was not correct that, at that time, the plaintiff was working as a heavy truck driver for Melton Bacchus Marsh Taxicabs.  She could not recall who had told the NAB that, but was reasonably sure that it was not her.  In relation to his earning approximately $7,000 a month at that time, she was uncertain about that figure.  She referred to having people working for them, but “that didn’t go well” – see T207.  However, she said that the plaintiff was not working.  Their friends were keeping the business alive and he was not actually running it.  She was not sure about the figure of $83,000 earnings a year.  She was aware of his repaying the loan to his parents.  She and the plaintiff had only “got together” about six or seven months before the accident.  However, she said it was correct that he had paid his parents back with the money which he was earning when working as a mechanic and doing the tow truck work.

90      Mrs Schembri said that, when she met the plaintiff, his ex-partner was looking after the five children.  It took quite a while for the plaintiff to start receiving benefits after he took over the care of the children.  She had discussed with him the necessity of filing income tax returns, but said that he just did not do it, referring to his illiteracy and such things.  In relation to the bankruptcy form, she said that she and the plaintiff did it together.  She said that the answer that the business had ceased operating on 10 April 2009 was a mistake.  She believed that she would have declared the TAC benefits to the trustee.  She also said that the plaintiff’s position was quite good before she met him, probably from about 2006 onwards.  It was a successful, lucrative business.  He did not understand about tax and what he had to do in that regard.  She was uncertain as to the size of the TAC payments received by the plaintiff, as they went directly into his account, as did the benefits in respect of support of the children.  It was the plaintiff who made the mortgage payments, although Mrs Schembri made a contribution approximately last year.  For the two years prior to that, it was the plaintiff who was paying out the mortgage.  She thought that the overall income of the house at that time might have been about $5,000 a month.  She also agreed that it was probably right that the loan repayments totalled $4,100 a month.  As far as she knew, it was only the plaintiff who had purchased the parts from A1 Autos that led to the bankruptcy.  She was not sure about the demands made, as the plaintiff hid it from her.  It was much later that she found out about it.  She denied that there were people coming to the house with paperwork.  She had never been told about him having to pay back $21,000 by way of wrongly claimed Centrelink benefits.  She was aware of his interest in pigeon racing and the enjoyment that he got from it. 

91      In re-examination, Mrs Schembri said that when she first met the plaintiff, he was going well with work, performing lots of jobs and working long hours.  Again, this evidence of the plaintiff operating a successful business or working long hours with lots of jobs scarcely accords with the very modest amount of income declared for the 2010 financial year, remembering that the accident occurred approximately nine months into that year.

92      This is a complicated case, made no simpler because of the plaintiff’s unfortunate illiteracy and, doubtless, difficulties in dealing with cross-examination.  However, the fact remains that his evidence, oral and written and viewed as a whole, leaves me in complete doubt as to what work he was performing and what income he was deriving before the accident.  It leaves me in the same level of doubt as to what work he was performing and what income he was obtaining after the accident.  I do not think that I need to highlight the discrepancies and contradictions set out in the lengthy summary above.  The end result is that, frankly, I cannot accept the plaintiff’s evidence as to the level of his general activities since the accident.  I cannot be satisfied as to his income and financial position before it.  I cannot be satisfied as to his income, financial position and work performed after it.  I appreciate that, pursuant to the Act, loss of earning capacity is a factor to be considered, as opposed to being a separate basis for an application for leave, as it is pursuant to the Accident Compensation Act.  Nevertheless, it is an important factor and has loomed large in the present case.  The exploration of it has led me to the conclusion that, not only has economic loss not been established, but also that the plaintiff’s credit generally has been substantially damaged.  The material contained in the surveillance, whilst not particularly dramatic, has reinforced this view. 

Mental or behavioural disturbance or disorder

93      As previously stated, I will now deal with this aspect of the claim, having considered other developments since the accident, credit and the like.  I would again refer to what was said by Brooking JA in Palmer Tube Mills (Aust) Pty Ltd v Semi, an observation reinforced in the recent decision of the Court of Appeal in Papamanos v Commonwealth Bank of Australia [2014] VSCA 167.

94      That credit is of great importance seems to me to be particularly so when what is under consideration is what could be described as a mental injury.  As was stated in Papamanos, the opinions of medical witnesses often depend upon what they are being told by the particular applicant and upon his or her behaviour or performance during examination and testing.  It seems to me that, when the injury is a mental one, that reliance is even greater.  As I have stated, in the present case the general view of the relevant examiners is that the plaintiff suffers from a mixed anxiety/depressive disorder, chronic Adjustment Disorder, Post-Traumatic Stress Disorder or the like.

95      If, in such a situation, the plaintiff’s account of things is not reliable, the conclusions of the medical examiner must then be questionable at best.  For example, the plaintiff told Dr Walton that he had attempted to return to work on about four occasions, but had problems with dizziness, poor concentration and a lack of energy.  His tow truck business was closed down as it became economically unviable.  The evidence before me as to what in fact occurred does not entirely coincide with this.

96      Incidentally, the plaintiff told Dr Walton at the examination of 25 September 2012 that he had marked restriction in his social activities and had given up racing pigeons.  However, his Facebook entry of 26 June 2012 referred to the fact that he had “tossed” his pigeons that day and had done “really well”.  It also records that he had “only 65” pigeons in his race team.  It is also apparent that he had been looking for “Indian fantails” in April 2012.  He ultimately went on to win a race of some substance in 2013.  This apparent contradiction is just an example of a history of doubtful accuracy being given to a medical examiner.  That inaccuracy is perhaps underlined by the history given to Dr Walton at a subsequent examination on 4 February 2014, when the plaintiff said that, whilst he retained his pigeons, he was no longer involved in racing.  His Facebook entries would indicate that he won a major race on 18 August 2013 and only missed out by a couple of seconds on 25 August.

97      Indeed, in cross-examination the plaintiff agreed that he had raced pigeons in 2013 and, in 2014, won the Federation Average for Overall Races – see T32.  These may not be examples concerning an issue of crucial significance, but they illustrate that, particularly in cases involving mental injury, credit is of great importance in relation to the formulation of opinions by medical examiners.

98      Similar discrepancies can be found in the histories given to psychiatrists examining on behalf of the defendant.  To Dr Weissman, examining on 19 July 2011, the plaintiff said that he did not socialise anymore and that he kept to himself, staying at home.  Facebook entries of May and June of that year show the plaintiff apparently socialising and enjoying himself.   The impression given to Dr Weissman is of someone who is an insomniac, a wreck, and who basically stays at home, sitting on the couch and watching television.  This sits somewhat uncomfortably with the Facebook entry of 22 October 2011, which concerns the fact that it had apparently snowed where the plaintiff lives in Melton and that he was angry because he could not work outside.  It sits uncomfortably with his admitted evidence that he was racing pigeons in 2011.  That is leaving to one side the confused picture as to whether he was working or had others working for him.  Certainly, in 2010 his Facebook page contained entries advertising for work, and in February 2012 there was an entry describing him as the owner of Hulks Towing, and, on 20 February 2012, warning others that “The Hulk should be on the road later this afternoon…”.

99      The same sort of remarks could be made in relation to the history given to Dr Ingram on 7 February 2013.  To Dr Ingram he said that he spent most of his time at home in bed or watching television, that he had not been working and that he had not wanted people to see him.  Some of these remarks are in contrast to his observation that locals still consulted him about repairs to their motor vehicles and that he gave advice.  It is also in contrast with the racing of pigeons which occurred during that year.  A remark to Dr Ingram that the plaintiff had stopped driving a car altogether because he was worried that he was going to cause an accident does not seem to fit in with other descriptions of his driving activities.  I also note with interest an observation recorded by Dr Ingram that the plaintiff said that he had tried to return to work as a self-employed mechanic, but could not continue beyond 10 minutes because of the pain.  Whilst this may not be in direct contrast with other evidence, it does not fit well with the entries on the plaintiff’s Facebook page or his confused evidence about his earnings.

100     In summary, whilst, as stated, the general view of the medical examiners is that the plaintiff suffers from a mixed anxiety/depressive disorder, a chronic Adjustment Disorder, Post-Traumatic Stress Disorder or the like, whether or not they have been given an accurate history is a matter of considerable concern.  The plaintiff’s lack of reliability is such that I cannot be persuaded that he suffers from any serious mental disturbance or disorder, much less one that is severe.

101     As was said in Papamanos and earlier cases, the word “severe” is a word of stronger force than “serious”.  The statutory test is quite a demanding one.  I am not of the view that the plaintiff has discharged the burden of proof in relation to satisfying it. 

Long-term impairment or loss of a body function

102     I am not persuaded that the plaintiff has established that he has a serious long-term impairment or loss of a body function within the meaning of s93(17) of the Act.  This is so, although I appreciate the fact that the test in relation to physical injuries is less demanding than that in relation to mental injuries, the word “serious” being used as opposed to “severe”.  However, the impact of credit material and the burden generally borne by the plaintiff otherwise remains the same.  After considering the consequences of the physical injury suffered by the plaintiff, I am not persuaded as to serious impairment or loss of a body function, even allowing for what has been said in Richards v Wylie.  Indeed, as I am of the view that the predominant consequences of injury, such as they are, are of a mental nature, the applicability of Richards v Wylie is doubtful.  Even if it does apply, the same credit problems exist.  Essentially, I am not of the opinion that the plaintiff’s evidence is accurate or reliable.

103     As has been discussed above, I simply cannot be satisfied as to the range of activities carried out by the plaintiff since the accident.  The damage to his credibility remains a major problem for him.  I have previously indicated in paragraph 41 above that the consequences of any injury received to the left knee and cervical spine are not sufficient to satisfy the statutory test.  I have reached a similar view concerning any injury to the lumbar spine and to the hips.  I have also previously stated that the evidence points to the conclusion that the plaintiff suffered the aggravation of pre-existing degenerative disease in the lumbar or lumbosacral spine, with a small right lumbosacral disc protrusion.  I have found that radiology has revealed the existence of pathology in both hips, although the significance of this seems to have been a matter of some debate.  Apart from the fact that I remain unsatisfied as to the level of the plaintiff’s activities since the accident, I would also point to the following.

104     The original treating orthopaedic surgeon, Mr Justin Hunt, from whom no report was placed in evidence, appears to have reached the conclusion that the plaintiff had trouble coping and felt it prudent that he be referred to Dr Daniel Lee of the Melbourne Pain Group.  The plaintiff was then seen by Dr Clayton Thomas of that group.  Dr Clayton Thomas felt that the plaintiff needed “more of an educative pain management approach” and recommended that he attend Dorset Rehabilitation Centre for such a program.  As earlier stated, apparently the plaintiff failed to keep an appointment there.  Mr Russell Miller, orthopaedic surgeon, who also treated the plaintiff and, having diagnosed an aggravation of musculo-degenerative disease and a musculo-ligamentous strain, referred the plaintiff to Spinal Management Clinics of Victoria.  I have already referred to the report which that entity provided to Mr Miller, but essentially the diagnosis was of an Adjustment Disorder with mixed anxiety and depressed mood, a complex presentation of significant pathology, multiple injuries, neurophysiological concerns and psychosocial distress.  As with Dr Thomas and the Dorset Rehabilitation Centre, again there were problems with the plaintiff keeping appointments.  I do not intend to go through another summary of all the medical reports, but the impression gained from those reports is that mental or behavioural problems loomed large in the opinions of those to whom the plaintiff was referred by his general practitioner.  Whilst there seems to be medical debate concerning whether a Chronic Pain Syndrome is an organic or medical condition, I note that Mr Kossmann, examining for medico-legal purposes, stated that the Chronic Pain Syndrome was the major obstacle preventing the plaintiff from regaining a work capacity and that Dr David Murphy, a consultant physician in rehabilitation medicine, diagnosed severe anxiety, depression and Chronic Pain Syndrome.  He described the plaintiff’s back pain as non-specific.  He also referred to the plaintiff’s mood disturbance, referring to severe anxiety and depression. 

105     Given the intermingling of these factors with any organic injury, the credit of the plaintiff clearly remains a factor of great importance.  Whilst, in his affidavits, he has listed a number of consequences (sleep disturbance, interference with sexual relations, taking of certain medications and the like) which could well point to the existence of a serious injury within the meaning of the Act, if his credit as to his activities and generally has been damaged, the force of those assertions drops away.  That is particularly so when the foundation for the consequences of any physical injury appear also to involve a large mental component.  Whilst I might not accept Mr Dooley’s view that the small disc protrusion, with what has been described as minimal nerve root displacement, that has been detected is part of the natural degenerative process, I would agree with his opinion that the plaintiff’s psychological condition dominates his clinical presentation.  Further, I note, with interest, his opinion that continuing to treat the plaintiff’s condition as though it is organically based only is pointless.  As far as I can tell, Mr Dooley expressed that opinion without having available to him the surveillance material, the Facebook entries or other credit material.  One can only assume that they would have reinforced his view in relation to the physical injury.

106     In summary, I am not of the opinion that the plaintiff has discharged the burden of proof and has satisfied the test in Humphries & Anor v Poljak [1992] 2 VR 129. I cannot be satisfied that the consequences are such that the injury, when judged by comparison with other cases in the range of possible impairments or losses, could be fairly described as being at least “very considerable” and certainly more than “significant” or “marked”. In all the circumstances, which I have set out above, the plaintiff has not so persuaded me.

Ruling and conclusion

107     As is evident from the above, the plaintiff is unsuccessful.  He has failed to discharge the burden of proof.  I shall not set out again my reasons, but trust that they are clear from the above.  Even allowing for his literacy problems and his lack of education, the evidence concerning the plaintiff’s employment and other activities, both before and after the accident, is so unsatisfactory that I cannot be satisfied that the burden of proof has been discharged.

108     The application is dismissed.  I shall hear the parties as to any ancillary orders that are required.