Scicluna v TAC
[2011] VCC 274
•17 March 2011
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-10-00688
| KEVIN SCICLUNA | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
---
| JUDGE: | HER HONOUR JUDGE K L BOURKE |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 7, 8 and 9 March 2011 |
| DATE OF JUDGMENT: | 17 March 2011 |
| CASE MAY BE CITED AS: | Scicluna v TAC |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 274 |
REASONS FOR JUDGMENT
---
Catchwords: Transport Accident Act 1986 – Section 93 – impairment to the cervical spine – psychiatric impairment.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P F O’Dwyer SC with | Maurice Blackburn |
| Ms A R C Spitzer | ||
| For the Defendant | Mr M R Titshall QC with | Solicitor for Transport |
| Ms R J Boyce | Accident Commission | |
| HER HONOUR: |
1 This is an application brought by Originating Motion by which the plaintiff applies for leave pursuant to s.94(4)(d) of the Transport Accident Act 1986 (“the Act”), to bring proceedings to recover damages for injuries suffered by him arising out of a transport accident which occurred on 14 March 2003 (“the said date”).
2 Section 94(6) of the Act provides:
“A court must not give leave under sub-section (4)(d) unless it is satisfied
that the injury is a serious injury.”
3 The definition of “serious injury” relied upon by the plaintiff is under s.93(17)(a) – “a serious long term impairment or loss of a body function”.
4 The body function relied upon by the plaintiff in this application is the cervical spine.
5 The application was also brought in relation to sub-paragraph (c), claiming a severe permanent behavioural or emotional disturbance. No submissions were ultimately made by counsel for the plaintiff in this regard.
6 The enquiry under subparagraph (a) of the definition focuses attention, first, upon whether the injury has produced an organic impairment or loss of body function, and then by reference to the consequences of that impairment, to determine whether it is serious and long term.
7 The serious injury defined by subparagraph (a) can have its seriousness measured in part by a mental response to a physical impairment. What it will not recognise is that the mental disorder can of itself constitute or be the producer of the impairment of a body function: see Richards v Wylie (2000) 1 VR 79.
8 In forming a judgment as to whether the consequences of an injury are serious, the question to be asked is, can the injury, when judged by comparison with other cases in the range of possible impairments, be fairly described as at least “very considerable” and more than “significant” or “marked”?: see Humphries v Poljak [1992] 2 VR 129, at 140-1.
9 The plaintiff relied on three affidavits and gave viva voce evidence. He was cross-examined. Mr John O’Brien, orthopaedic surgeon and Mr David Brownbill, neurosurgeon, were required to attend for cross-examination.
10 In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The Plaintiff’s Evidence
11 The plaintiff is aged thirty two, having been born on 17 August 1978. He completed Year 9 and then undertook a spray painting apprenticeship and worked as a spray painter. For three years prior to the said date, the plaintiff worked for Bodycorp Smash Repairs (“Bodycorp”).
12 In cross-examination, the plaintiff agreed he started his apprenticeship with a view to being promoted as he got older and more experienced. His ambition was not to stay a spray painter but to be promoted to supervisor, a position he later achieved at Norsun Motors (“Norsun”).
13 For ten years prior to the said date, the plaintiff lived with his de facto partner and daughter. He enjoyed rebuilding cars, recreational shooting, four wheel driving and riding his motorcycle. Socially he went out clubbing with friends, went out to dinner or visited friends at home.
14 When he first started his apprenticeship, the plaintiff had some low back pain, but he did exercise regularly and recovered completely.
The Accident and Subsequent Medical Treatment
15 On the said date, the plaintiff was a passenger in a four-wheel drive driven by a friend. Whilst travelling along Taylors Road, Sydenham, the plaintiff felt a bang which he believed was due to the vehicle hitting a large rock on the road. The vehicle rolled four or five times and the plaintiff’s head went through the windscreen (“the accident”).
16 In cross-examination, the plaintiff described the accident circumstances. He confirmed that his head went through the windscreen, describing that was how he got his scar when his head “popped” the windscreen, making a hole in it.
17 Following the accident, the plaintiff was taken to Sunshine Hospital by a friend. The plaintiff was found to have suffered facial lacerations and soft tissue injuries to his neck, back and shoulder.
18 The plaintiff had about forty stitches in his face. He has a 6 centimetre x 6 centimetre “T-shaped” scar, starting under his left eyebrow and travelling vertically up his scalp. His horizontal scar starts above his left eyebrow and travels the left side of his forehead.
19 The plaintiff was discharged home after about three and a half hours and was provided with a neck brace.
20 The plaintiff was subsequently treated by his general practitioner and had physiotherapy for neck pain twice a week for two months and then weekly for a further twelve months.
21 In cross-examination, the plaintiff could recall seeing Dr Ng in Deer Park to have his stitches removed, ten days after the accident. The plaintiff agreed the next time he saw a doctor was when he saw Dr Nguyen on 23 May 2003 for a second opinion.
22 The plaintiff saw Dr Ng a few times after he took out the stitches. He was told by Dr Ng that there was not much wrong with him and to pretty much get on with his life. The plaintiff received similar advice from Dr Ngyen. Dr Ng referred the plaintiff to a physiotherapist and psychologist.
23 When it was put to the plaintiff he had not seen Dr Ng for his neck condition on the occasions he had seen him between 2003 and 2006, the plaintiff said that every time he went and saw him it would have been for that, not because he was sick. The plaintiff agreed he received no treatment from Dr Ng.
24 The reason the plaintiff next saw Dr Ng in the middle of 2010 was to organise an x-ray which Centrelink required before the plaintiff could be put on benefits. The plaintiff is presently on Newstart payments.
Work 25
Following the accident as a result of his injuries, the plaintiff was unable to work for six weeks. On his return to work, his hand, shoulder and back became painful when he held up the spray gun, and he worked much more slowly. Prior to the accident, the plaintiff could paint two to three cars a day, but thereafter, he was lucky to be able to paint a single car in a day.
26
In examination-in-chief, the plaintiff said that when he returned to work at Bodycorp after the accident he did his normal duties but he “could not cope with it no more, [he] could not lift his spray gun and stuff like that” because of his pain.
27
Payroll records from Bodycorp detailed the plaintiff was earning an annual income of $44,000. His Claim for Compensation completed on 16 March 2003 set out he was being paid $17.65 per hour at Bodycorp in the smash shop, working six days a week from 7.00 am to 5.00 pm.
28
The plaintiff deposed he was fired five months after returning to work at Bodycorp.
29
In cross-examination, the plaintiff explained he was sacked from Bodycorp because he could not perform his actual duties anymore as he was not capable of doing spray painting “to a certain extent”.
30
The plaintiff left Bodycorp because he could not handle the work pressure of the stress because he could not perform the way he used to. He could not rub the cars the way he used to, he could not paint that way. He was not “efficient” in those five months and there was another spray painter doing the work.
31
The plaintiff was sacked because he was getting mentally depressed, he had a bad temper and everything rolled into one and that is how it ended. The plaintiff then agreed he was not sacked because of physical problems, he was sacked because there were clashes between him and other people at work.
32
In re-examination, the plaintiff said that on his return to Bodycorp he just could not do his job properly and that was making him more frustrated and more depressed and then he “got the other pain on [his] back” making him depressed.
33
On 31 March 2005, through a friend, the plaintiff obtained a job as a head spray painter and foreman in charge at Norsun, where he worked until 12 June 2007.
34
The plaintiff deposed he coped better physically with this job but he was angry about his physical restrictions and pain and he got into arguments.
35
In examination-in-chief, the plaintiff explained that he “was just the helping hand, just making up colours, cleaning the shop, making sure everything was done right”. He did not do spray painting because he could not lift the spray gun.
36
The boss at Norsun expected too much of the plaintiff to do his type of work, which he could not, like spray painting, so that is when things started to emerge.
37
The plaintiff deposed that eventually he left this job because the stress became too great and he was then unemployed for eighteen months.
38
In cross-examination, the plaintiff explained that the Norsun job was less hands on and he was not spray painting cars. He agreed he was angry about his physical restrictions and pain and got into arguments and eventually left that job because the stress became too great. He then said he left because he could not do his physical activities properly and confirmed he did have physical restrictions. The stress at Norsun was of all the other workers not doing their job right to make his job easier.
39
The plaintiff left Norsun because of his physical difficulties, leaving the job on bad terms.
40
When it was put to him he would not have obtained the job at Norsun as head spray painter and foreman if he could not spray paint, the plaintiff explained that was correct, but a foreman does not do much of the work. The plaintiff took the job because he needed the money. He had to survive and he put up with pain to make a living.
41
When the Norsun reference from Mr Micallef was put to him, the plaintiff said he never used to spray paint cars all the time but did so at first. The plaintiff never prepared and sprayed cars at Norsun save for the first month when he painted a few cars, and after that he did no painting. He supervised staff and dealt with one or two small customers here and there and had no trouble with those jobs.
42
The plaintiff agreed that in the financial year ending 30 June 2006 working for Norsun he grossed $39,022 and he grossed $44,859 in the following year. He was working like a normal person would try to work and he was getting his life back on track.
43
In re-examination, the plaintiff confirmed that at Norsun in the first month he had problems spray painting because he could not hold his hand up for too long but he always had a friend there working with him. After the first month the plaintiff just ended up giving the other painter a hand. His job also involved organising the workshop, making bookings for cars and matching colours.
44
After leaving Norsun the plaintiff was looking for something different, alternate work as in anything besides being a spray painter that did not involve that much physical work.
45
In cross-examination, the plaintiff agreed he told Professor Ponsford that he spent his time doing little and he was not really looking for work but said this was because he was in pain. He worked because he had to support his family.
46
In re-examination, the plaintiff explained that at Bodycorp and Norsun the problem was that the boss was trying to push more of the workload onto him.
47
After being unemployed for about eighteen months, in about May 2009, an old friend offered the plaintiff a job as foreman at Keilor Collision Centre (“Keilor”) where the plaintiff worked until August 2009. His duties involved supervising staff, dealing with customers, ensuring the workshop was clean, making sure the stock was up to order and undertaking minor preparation of cars for spraying. It was just light maintenance work. The plaintiff was not able to do any spray painting then as it was too painful for him. He was made redundant from Keilor in August 2009 when there was a shortage of work.
48
When employed by Keilor in the period 25 May 2009 to 14 August 2009, the plaintiff worked forty hours per week, grossing $628 per week at a rate of $15.70 per hour.
49
In cross-examination, the plaintiff said that being a “helping hand” and a supervisor at Keilor was the same thing. He was doing both roles. A helping hand “was like organising paints and materials, it just takes the workload off other workers”.
50
The plaintiff did not lodge taxation returns for the years ending 30 June 2008 and 2009 as he did not earn sufficient income.
51
The plaintiff was then unemployed for about fifteen months until November 2010 when he obtained work at Memory Lane Custom Automotives (“Memory Lane”) as manager, with duties involving supervising staff, ordering parts, carrying out quotes and dealing with customers.
52
The plaintiff continues to work at Memory Lane for approximately fifteen hours per week. He works in the car yard three days a week for five hours a day. He moves cars around, washes them and does light maintenance. He does not help in the repair shop.
53
In cross-examination, the plaintiff agreed that whilst he described his job at Memory Lane as a helping hand, he was in fact a shop foreman. He agreed that he had been punctual, reliable and turned up for work every day as a shop foreman as the letter from C Barbara, Director of Memory Lane, exhibited to the plaintiff’s affidavit, set out.
54
If the plaintiff was offered more hours at Memory Lane most likely, yes, he would do them as long as the workload did not get any worse.
55
The plaintiff has not had any time off work in his current job because of his neck condition or headaches. If he worked more hours, he would receive less in Centrelink payments. He has to work fifteen hours a week on Newstart. He would work more if Memory Lane had to employ him for more than three days a week. It depended on what he was doing. He receives $380 per week in total from Memory Lane and Newstart payments.
56
The plaintiff deposed that he has lost earnings due to his accident injuries. He is unable to do the sort of work he has done all his life and he is at risk, if he loses his present job, of finding suitable alternative employment, having no training, qualifications or experience of working in lighter sedentary or clerical employment.
57
In re-examination, the plaintiff agreed spray painting was something he particularly wanted to do after school. There was no other trade he thought he would be able to do at the moment in his condition. It was pretty easy to get work as a spray painter and there were always advertisements in the paper for jobs.
Leisure and Domestic Activities
58 In August 2009, the plaintiff deposed he no longer goes bushwalking, participates in recreational shooting or rides motorcycles. He cannot do heavier household tasks, such as vacuuming, mopping floors, hanging out the washing and cleaning the bathroom and his sister assists him with those tasks.
59 In cross-examination, the plaintiff said that he used to go shooting for pigs and goats in New South Wales probably once a month, having last gone shooting in 2002.
60 In 2000, the plaintiff bought a Honda motorcycle but he sold it in 2006 as he could no longer ride it after the accident. The plaintiff tried to get back to motorcycle riding but as soon as he got off the bike he had shoulder and neck pain for about one or two days. He could not turn his head and could not stay in the one position to ride the bike.
61 The plaintiff thought the last time he had ridden a bike would have been in 2005-2006 and then agreed as Ms Cocking had reported in 2007 that he had recommenced riding motorcycles at that time.
62 At the time of the accident the plaintiff owned a Suzuki Sierra motorcycle but sold it and replaced it with a VN Commodore in 2006 as it was too rough and too bumpy to drive after the accident.
63 Prior to the accident, the plaintiff used to go four-wheel driving a bit to Kinglake and Toolangi. He tried four-wheel driving once after the accident but could not handle the pain the next day after all the bouncing around.
64 The plaintiff currently has a girlfriend whom he has been seeing for about three years. They do not have a very active social life and tend to stay home and watch movies. The plaintiff is too old to go to nightclubs and he does not feel like he fits in.
65 The plaintiff explained that he denied having a relationship at the time of various medical examinations as this involved his personal life and had nothing to do with the doctors and he thought he had no need to mention it.
66 The plaintiff has problems moving his head to the right when driving. He has to use his mirrors extensively but agreed he drove his daughter in his car every day. The plaintiff drove to New South Wales twice in the last two years, sharing the driving with his girlfriend.
67 In the witness box the plaintiff indicated that he could rotate his neck further to the left than the right. He also had some problems putting his head back and he could not touch his chin on his chest.
68 The plaintiff has helped others rebuild cars but he has not done so himself since the accident. Before the accident, he rebuilt two or three vehicles. He did up these vehicles, changing the tires and the suspension. The plaintiff sold his tools a while ago as he had no money.
69 The plaintiff denied, as Professor Ponsford reported, that he was still building four-wheel drives in April 2009 and said he had not built one since the accident. The plaintiff still builds plastic model cars having got more involved in that hobby after the accident. He also has a reptile hobby.
70 The plaintiff deposed that he became depressed after the accident and angry about his pain.
71 The plaintiff confirmed his de facto partner left him because of his aggression problems after the accident which also involved his daughter not coming near him for three months.
72 Between October 2003 and May 2007, the plaintiff regularly saw a psychologist who helped him a bit. The plaintiff is still embarrassed and self conscious about his facial scar and he wears a cap all the time. He no longer goes to bars or restaurants. He has lost the sensation over his scalp and forehead and he has gone bald since the accident.
73 In August 2009, the plaintiff deposed that he still has nightmares and flashbacks, he has no appetite and had lost fifteen kilograms.
74 In cross-examination, the plaintiff said he did have nightmares and flashbacks and would have told Dr Strauss that he thought about the accident every day. The plaintiff described flashbacks as remembering what happened in the accident.
75 The plaintiff then said he was not suffering from as many nightmares and flashbacks by 2008 but every time he looked in the mirror he saw his scar and got a flashback. He then said he could not remember his last nightmare.
76 In cross-examination, the plaintiff said he had not really had anger problems for a long time. He confirmed it was a longstanding issue for him that his father had favoured his brother. The plaintiff had not spoken to his brother for ten years. The plaintiff denied having an anger management problem as a young man. He confirmed that after the accident on one occasion he was charged with affray.
77 The plaintiff is presently living with a friend, having last lived with his parents a year ago.
78 The plaintiff gets on alright with his ex de facto partner and he sees their daughter nearly every day. He manages the housework and domestic activities but he cannot cut grass or put the washing on the line as it hurts so much. When it is painful he cannot move.
Pain and Restriction
79 The plaintiff deposed in August 2009 that he had persistent neck, right shoulder and upper back pain, headaches and difficulties with memory and concentration. He was no longer able to lift heavy items or hold his neck in a fixed position and had difficulty rotating his neck or head. He confirmed these were ongoing problems in his second affidavit sworn 11 February 2011.
80 In cross-examination, when asked about his assessment of his pain at nine out of ten as described to Mr O’Brien when he was not working or doing anything, the plaintiff replied: “You don’t know what I’m feeling. I wake up at night, every night, and yes, buckled, mate, because I can’t move my neck.” The plaintiff disagreed that he could do everyday activities as Mr O’Brien reported.
81 Since 2003, the plaintiff’s neck pain has been the same, “it gets flared up and then it goes down”. His headaches have stayed the same and he always gets them. Every day he wakes up with a headache, which continues at work and when he goes to bed.
82 In that second affidavit, the plaintiff deposed that he was taking Panadol or Nurofen for headaches a couple of times a week, and about once a month he had a migraine.
83 In examination-in-chief, the plaintiff said that he takes just Nurofen and Panadol, probably two a day, and he wears a neck brace every night. He does exercises for five to ten minutes in the morning.
84 When cross-examined as to how his evidence differed as to the level of his medication intake, the plaintiff was not saying he woke up every morning and he is going to pop two tablets. He took tablets three to four days in a normal week.
85 The plaintiff described migraine headaches that were so bad he could not open his eyes and he had to lie in a dark room. Such migraines were ten times worse than a headache. He had been to see Dr Ng about this problem and was told by him to take Panadol.
86 The migraines started about five years ago. The plaintiff suffered from them when he was working at Norsun. He initially said he had to take a couple of days off work and then said he took twenty days off work because of migraines whilst working at Norsun.
87 In examination-in-chief, the plaintiff said that he is not seeing a doctor because every time he went to see a general practitioner he was told, “You’ll be right just go take a few Panadols and Nurofen and you will be fine, it’s just a twisted muscle”. The plaintiff did not believe his local doctor was helping him.
88 Physiotherapy helped the plaintiff slightly in short spurts. He was having this treatment whilst working with Norsun until the defendant stopped paying for it.
89 The plaintiff denied he saw the physiotherapist less frequently because the plaintiff saw less of a need to go. He stopped treatment because his physiotherapist told him that the defendant was going to stop paying for it.
90 Having been shown the letters from the defendant relating to physiotherapy the plaintiff said he did not really understand but he thought the defendant had written to him, but then could not remember getting a letter. He did not fill out any form at the physiotherapist, nor did his physiotherapist discuss with him the contents of the defendant’s letters. He did need physiotherapy but he could not afford it, saying it was $75 a visit, but when pressed, he did not really know how much a visit would cost.
91 During the time the plaintiff was undergoing physiotherapy he was also going to the gym and doing light shoulder presses to strengthen his shoulders. He sometimes went to the gym during work hours but not often. The plaintiff then said he did not go as often to the gym because he was trying to feel better and trying to work it out himself before anything else.
92 The plaintiff did a literary course through Centrelink but it did not really help. He just cannot understand what he is reading when he reads it, if he can read it.
93 The plaintiff was cross-examined about his literacy skills. Counsel for the defendant asked him to read part of his affidavit. The plaintiff said he was not stupid, he can still read a little bit, most of the time he cannot understand big words. After his solicitor helped him read his affidavits he declared they were true and correct and the contents were explained to him. The plaintiff read out the opening lines of his first affidavit, struggling with the words such as “oath”.
94 The plaintiff confirmed he went to trade school but said he did not have to do any technical work and it was all practical. He was not smart in the writing and reading way. He sometimes uses the internet on his young daughter’s computer but pretty much does not really go on it.
Claim Details
95 The TAC printout set out the most recent physiotherapy appointment was 19 January 2007 with three visits the preceding year, twenty three visits the year before and more frequent appointments in 2003 and 2004.
96 Psychology treatment was last paid for by the defendant on 30 May 2007.
Summary of the Plaintiff’s Earnings
Financial Year Gross Income Employer 2002 $30,394 Body Corp 2003 $39,668 Body Corp 2004 $20,476 Body Corp 2005 $10,036 Norsun 2006 $39,022 Norsun 2007 $44,859 Norsun (ceased 14 June 2007) 2008 - No tax return 2009 $3,140 Keilor 2010 $4,394 Keilor * 1 November 2010 to date $225 net per week ($155 Newstart)
18 weeks, $4,055 net - Memory Lane
The Plaintiff’s Treaters
97 The initial medical certificate was completed by Dr Ng from the Deer Park Medical Centre on 16 March 2003 certifying the plaintiff unfit for work from 15 to 17 March 2003, because of a laceration to his forehead.
98 Dr Ng provided a certificate from 17 March to 21 March 2003 and 24 March to 30 March 2003 for whiplash injury.
99 Dr Ng reported on 8 December 2003 that the plaintiff had been a patient of that surgery since 1982 and had consulted on 4 January 1982, 15 March 2003 and 5 December 2003.
100 Dr Ng noted that the plaintiff had a scar on his forehead from the accident with a laceration requiring twenty five stitches, Post-Traumatic Stress Disorder and depression, whiplash injury and headaches. There was no aggravation of any pre-existing condition in the accident.
101 Dr Ng reported the plaintiff was very conscious of his scar and had mentioned it on a few occasions. The plaintiff had shown symptoms of anxiety and depression since the accident and it affected his work performance, noting he was retrenched from work at the end of November 2003. The plaintiff continued to have a sore neck and headaches, although the symptoms had improved. He was not able to perform heavy manual work.
102 Dr Ng noted the plaintiff previously had lower back pain as a spray painter, which was treated with analgesics and aggravated on 19 January 1998 following a car accident, after which the plaintiff required physiotherapy and NSAIDs.
103 Dr Ng noted that following the 2003 accident, the plaintiff’s wound was sutured and x-rays of his face and neck were taken at Sunshine. He had been prescribed Panadeine Forte; Ducene, 5 milligrams; Voltaren, 50 milligrams; Zoloft of that dosage; Mobic, 7.5 milligrams; physiotherapy; and a psychologist for counselling. Dr Ng thought the plaintiff was then totally incapacitated for work.
104 Dr Ng considered that being retrenched from work had definitely not helped the plaintiff’s confidence, depression and anger control. The plaintiff acknowledged his work performance had been poor since the accident because he found it hard to concentrate with neck pain, headache and depression.
105 Dr Ng briefly reported on 25 February 2011 that he had not been treating the plaintiff since 2006, but the plaintiff requested an x-ray of his neck on 14 July 2010 for Centrelink. A copy of the x-ray report was enclosed.
106 Dr Nguyen saw the plaintiff only once, on 23 May 2003, with neck pain following the accident.
107 Dr Nguyen advised the plaintiff his cervical x-ray was normal. On examination, the plaintiff experienced bilateral cervical and thoracic paravertebral muscular tenderness and he had a full range of movement.
108 Dr Nguyen’s impression was the plaintiff suffered from whiplash injury secondary to his car accident and he was prescribed Voltaren and was not seen afterwards.
109 The plaintiff first attended Mr McGlynn, physiotherapist, on 21 March 2003, a week after the accident. The plaintiff then reported constant neck and right sided trapezial pain. On assessment, the plaintiff had about eighty per cent range of movement of his cervical spine with pain restricting his movements, with tenderness on palpation. An initial diagnosis was made of a C2-C4 spinal irritation with whiplash injuries to the cervico thoracic muscles.
110 The plaintiff complained of headaches resulting from his injuries and subsequently his general practitioner certified him unfit to work as a spray painter.
111 The plaintiff attended physiotherapy on a regular basis with fluctuations in improvement. Such improvement was only short lived, especially when the plaintiff attempted to return to his hobbies of four wheel driving and motorcycle riding which caused exacerbations of neck pain.
112 The plaintiff returned to work in April 2003 but ceased the following month for a period due to continued difficulty and neck pain. From the records it appeared the plaintiff returned to work towards the end of 2003.
113 Noting the plaintiff had attended the gym prior to the accident, Mr McGlynn reported the plaintiff resumed gym exercises in September 2004 to strengthen his neck and improve his pain management. Physiotherapy treatment was reduced and the plaintiff’s self management progressed. The plaintiff was seen sporadically in 2005 and a couple of times in 2006 for exacerbations of neck pain and headache.
114 Mr McGlynn diagnosed cervico-thoracic whiplash with spinal joints and muscle injuries, which had led to the development of chronic neck pain and headaches.
115 Having not reviewed the plaintiff for five years, Mr McGlynn reported he felt unable to comment on the plaintiff’s current capacity for work. He noted at the last review, the plaintiff had returned to full employment duties and managed with occasional exacerbations of neck pain. Mr McGlynn thought the plaintiff’s future capacity may be affected at times when trying to work in confined positions.
116 The plaintiff was referred to psychologist, Tina Cocking, by Dr Ng in October 2003 for depression following the accident. Dr Ng prescribed Zoloft and advised Ms Cocking that the plaintiff suffered post traumatic anxiety and anger, leading to an overall deterioration in his work performance and domestic situation.
117 On 29 October 2003, Ms Cocking wrote to Dr Ng, having seen the plaintiff twice. She advised therapy would involve mainly cognitive behavioural techniques to assist the plaintiff in understanding his symptoms and better managing his pain, depressive symptoms and anger.
118 During the initial session, the plaintiff described deterioration over recent weeks in his ability to undertake work duties and his earlier activities. He attributed that to his experience of chronic pain in his head, neck and back as a result of the accident. He described depressive symptoms, including impaired memory and concentration, ability to be distracted, poor motivation, emotional volatility, including periods of low mood and tearfulness, and periods of anger and low frustration tolerance.
119 Ms Cocking provided a confidential progress report in late 2003/early 2004. She recommended the plaintiff would benefit from further sessions, having the noted he reported therapy had been useful in helping him to better manage his behaviour and stresses.
120 Ms Cocking saw the plaintiff on 53 occasions over the period October 2003 to May 2007. In her view, the plaintiff’s presentation was consistent with a diagnosis of Post-Traumatic Stress Disorder with depressive disorder.
121 Ms Cocking noted the plaintiff’s attendance was reliable and he reported psychological assistance had been useful in helping to better manage his anger and anxiety. As his distress reduced and his ability to manage his anxiety and emotional volatility improved, sessions were scheduled less frequently. Towards the end of involvement there were four to six weekly which served to maintain the plaintiff’s self management skills and so minimised his anxiety and depression.
122 Ms Cocking reported that during May 2007, the plaintiff continued to describe depressive symptoms but these were much improved compared to the time of referral and other times of low mood over the period 2003 to 2007. These depressive symptoms tended to have minimal impact on the plaintiff’s functioning and were most evident at times of high anxiety and stress.
123 In May 2007, the plaintiff reported continued experience of significant levels of anxiety that impacted on his functioning work and social relationships. The symptoms of Post-Traumatic Stress Disorder were rarely reported in 2006 and 2007, though the plaintiff attributed many of his difficulties to the accident, given the role of chronic pain in changing his life, adding to his irritability and his inability to engage fully in previously enjoyed activity.
124 The plaintiff reported problems of social awkwardness and poor decision making were present more persistently and intrusively in the months following the accident and during 2005 to 2007 were still present though interfered less in his daily life.
125 During the later stages of his involvement with Ms Cocking, the plaintiff described more consistent efforts to maintain regular eating, sleeping and work routines, and he had begun to engage in leisure activities, which she noted was important in the management of his anxiety, mood, stress and pain levels.
126 Ms Cocking mentioned, notably, the plaintiff reported he had recommenced weight training and riding motorcycles. She noted the potential gains, both physically and emotionally, of leisure activity were identified, but for many months the plaintiff’s anxiety about further injury and exacerbation of his pain had prevented him from initiating such activity.
127 Whilst the plaintiff continued to experience chronic pain from his injuries, he indicated he was generally able to manage. Predictably, when agitated, his reports of the severity of his pain increased and his ability to cope deteriorated.
128 Ms Cocking noted of great significance to the plaintiff was the scar from the accident and he habitually wore a beanie or a cap to hide it and spoke often of his preoccupation with the scar.
129 Ms Cocking also reported to Dr Ng on 3 June 2007. She advised him in the past eighteen to twenty four months, periods of up to three months between sessions was typical.
130 Evident over of the period of treatment had been the ongoing affect of the accident and the plaintiff’s injuries and on his coping and function, with reports of chronic pain in his head, neck and back as a result of his injuries, but at times of stress, the physical difficulties she advised arising from the accident were more evident and more severe and debilitating.
131 Ms Cocking reported that since 2003, the plaintiff had experienced several depressive episodes which were typically triggered by conflict or difficulties in relation to relationships or circumstances and which usually began to resolve within a few months of the peak of their severity.
132 During those episodes, the plaintiff reported increased internal tension and irritability, poor motivation and lack of energy (though in the early stages of the episode he typically worked longer hours to avoid thoughts of the event triggering the episode), loss of interest in activities he usually enjoyed, disturbed sleep and hypersomnia and chronic tiredness, disturbed appetite, poor concentration, confused thoughts and hopelessness about his future.
133 Ms Cocking advised the defendant was no longer willing to fund the plaintiff’s psychology sessions, given the time since the accident and what she noted was the more perversive nature of his difficulties. However, she thought it was apparent that the plaintiff benefited from ongoing support in the management of his mood and anxiety and reported sessions to be helpful.
134 Ms Cocking advised that she had discussed the Better Access to Mental Health Care initiative (for Medicare rebates) with the plaintiff when she saw him on 30 May 2007. She noted the plaintiff was keen to pursue this, given he was presently experiencing most of the symptoms that accompanied his depressive episodes, and he did not believe he was coping well at that time.
135 Ms Cocking noted the plaintiff had an appointment with Dr Ng on 5 June 2007 relating to a physical concern, and she encouraged him to discuss a referral under the initiative with him.
Medico-Legal
136 Mr John O’Brien, orthopaedic surgeon, first examined the plaintiff on 8 September 2008 and re-examined him on 10 November 2010.
137 On the initial examination, the plaintiff told Mr O’Brien of the accident circumstances and his continuing neck pain since that time. He told Mr O’Brien, having had six weeks off work, he then struggled with work for eighteen months as he was literally unable to handle continuing work and he thus resigned, but his condition did not improve as a result.
138 The plaintiff said his pain was constant, extending from the occipital region distally to the lower thoracic spine. The maximal pain was in his neck, extending across to both shoulders, and he described the severity of his pain as nine and a half out of ten on the visual analogue scale. He also said he had a constant left temporal and frontal headache, the pain being behind his left eye.
139 At that stage, the plaintiff was not having any active treatment, or taking any medication as tablets did not control the pain. He was not working and then had difficulty with any physical activity, even light domestic duties.
140 On examination, the plaintiff reported extensive tenderness over the occipital and entire posterior aspect of the cervical spine and upper thoracic spine. Tenderness was also noted literally along the line of the trapezii above the spine at both scapulae. Flexion was to 35 degrees with 40 degrees of extension, 30 degrees of lateral flexion and 50 degrees of rotation. There was full range of movement of both shoulders.
141 Mr O’Brien thought there was currently no accompanying evidence of any neurological deficit, although the plaintiff did demonstrate painful restriction of neck movement with a significant area of local tenderness.
142 In the absence of x-ray findings, Mr O’Brien suspected the clinical findings related to a substantial soft tissue injury to the neck which had not resolved but had certainly stabilised.
143 Certainly on the basis of the plaintiff’s presentation at that time, Mr O’Brien suggested he was totally incapacitated with the plaintiff describing significant disability in relation to his neck symptoms. Mr O’Brien then thought unless some control could be obtained for the plaintiff’s severe chronic pain, there was no likelihood of him returning to gainful employment, and the plaintiff was presented with significant restriction in his overall activities, which affected his domestic, social and recreational pursuits.
144 On re-examination in November 2010, the plaintiff said he continued to experience the same problems. He told Mr O’Brien, although he did return to his work as a spray painter after the accident, due to the severity of neck pain he was forced to resign. The plaintiff told Mr O’Brien he had some physiotherapy treatment in 2009, which he funded for three months, and which gave him temporary relief for about twenty four hours but no general improvement. The plaintiff told Mr O’Brien that due to neck pain he remained in receipt of Centrelink benefits but said he had part-time employment in a pool shop approximately four months ago. Since then he had worked on a part time basis, working between fifteen and twenty hours per week doing light duties involving administrative and clerical work. The plaintiff told Mr O’Brien he had not returned to his pre-injury occupation as a spray painter and he stated he remained quite incapable of rubbing down or painting a car.
145 In addition to constant neck pain, the plaintiff stated he had persistent frontal headaches. He very rarely saw his local doctor and only occasionally took Panadol for pain. The plaintiff told Mr O’Brien he was capable of all the normal activities of daily living and shared the housework. Whilst being able to look after his daughter at times, the plaintiff indicated he continued to find his general activities were restricted. Although he could drive a car, he was now unable to ride a motorcycle and undertake any form of heavy physical activity.
146 On examination, flexion was to 40 degrees, there was 50 degrees of extension, lateral flexion was to 20 degrees with some 50 degrees of rotation, with description of pain on those movements. There was extensive tenderness over the entire posterior cervical region along the line of both trapezii above the spine of both scapulae. Flexion and abduction of both shoulders was restricted to 160 degrees, as this precipitated neck and shoulder pain. The other remaining movements appeared full. The plaintiff reported some clinical sensory deficit in the right arm. However, upper limb reflexes and power were normal.
147 The plaintiff reported no improvement since the previous examination. Mr O’Brien noted the signs continued to be subjective with restriction of cervical movement but no current evidence of any nerve root compromise or signs of radiculopathy. In his view, clinically there remained evidence of significant soft tissue cervical injury which continued to be a source of significant chronic cervical and upper back pain consistent with the stated cause.
148 Mr O’Brien thought there appeared to be no indication for pursuing any physical treatment nor the need for surgery. Given the chronic nature of the plaintiff’s neck pain, Mr O’Brien considered the prognosis was poor, indicating that the plaintiff would continue to experience significant cervical pain.
149 Mr O’Brien confirmed his earlier view that the plaintiff could not do his old job, nor a job involving heavy physical duties. He thought the plaintiff was capable of doing the limited light duties he obtained. Mr O’Brien however suggested the plaintiff remained incapable of undertaking full time employment and should therefore be confined to limited hours. He thought the plaintiff had sustained a significant neck injury and as a consequence, his general domestic, social and recreational activities would be permanently restricted.
150 Mr O’Brien was cross-examined. He agreed that on clinical examination on both occasions, it was pretty much the same result. There was slight variation in keeping with the plaintiff’s pathology, which was a soft tissue injury to the cervical spine.
151 Mr O’Brien then went on to say he could not see any pathology because he could not see into the body and by “pathology” he meant abnormal physiology, abnormal anatomy, or something which was abnormal.
152 What Mr O’Brien found on examination was restricted range of movement and tenderness which he agreed were subjective signs. He had no reason to disbelieve the plaintiff. The tenderness found was reproducible and consistent.
153 Mr O’Brien confirmed the history of the plaintiff’s employment that had been given to him. He accepted that the plaintiff said the fact his pain was so severe he could not continue to work, despite physiotherapy treatment.
154 In addition to the plaintiff’s description of pain, the other relevant aspect was the examination of the plaintiff and Mr O’Brien’s perception of his presentation.
155 Mr O’Brien was reluctant to agree with counsel for the defendant’s proposition that the history given to him was totally differed to the reality, but he finally agreed this was the case.
156 When asked about the plaintiff’s assessment of his pain at nine out of ten, and whether the plaintiff was painting himself as almost an invalid by neck pain, Mr O’Brien said “you would have to ask the plaintiff that because he could not see neck pain and he had to rely on what he was told and had to accept that everyone rated their pain differently.”
157 In re-examination, Mr O’Brien agreed that the results of Professor Ponsford’s neuropsychological testing were consistent with the plaintiff’s long reported difficulties with reading, writing and maths. Mr O’Brien thought people like that were far more likely to be genuine and he had no evidence to believe that the plaintiff was in any way not genuine.
158 When counsel for the plaintiff told Mr O’Brien of the plaintiff’s post-accident work problems relating to stress, Mr O’Brien said it completely confirmed his opinion. What Mr O’Brien was told was not of a man who went to work at any point time on normal duties. The plaintiff obviously went back to work, struggled, got a new job with modified duties to at least some extent. He could not cope with that and since that time had difficulty finding employment.
159 Mr David Brownbill, consultant neurosurgeon, initially examined the plaintiff on 18 November 2008 and re-examined him on 24 November 2010.
160 On the initial examination, the plaintiff told Mr Brownbill his head went through the windscreen in the accident. The plaintiff returned to work after six weeks supposedly on light duties. However, these were really full duties, which the plaintiff continued until 2007 when he ceased because he had severe neck pain, was becoming stressed and arguing all the time. He could not do his job and could not hold the spray gun.
161 The plaintiff told Mr Brownbill his pain did not flare up as much since he stopped work. He was then not taking any medication or receiving any physical treatment.
162 The plaintiff told Mr Brownbill he had headaches, like a knife stabbing, present every day which could last two days. His neck pain situated posteriorly was present all the time, extending to the right shoulder blade, behind the ear as well as down the upper back, and he had stress and depression because of pain.
163 On examination, the plaintiff was cooperative without embellishment. There was marked tenderness to the right side of the neck posteriorly. Active cervical movements were decreased to two thirds of full in lateral flexion and slightly in extension. The other movements were full. Facial sensation was decreased with some unpleasant quality over the left forehead on top of the scalp. There was no abnormality of the upper limbs.
164 Mr Brownbill thought the plaintiff had suffered damage to the supra orbital nerve in association with the left forehead laceration and did not sustain any other neurological abnormality. He also thought the plaintiff suffered soft tissue injuries to structures about the neck, giving rise to pain without neurological damage.
165 Mr Brownbill considered the plaintiff should in future avoid activities involving heavy lifting, forced cervical spine mobility or holding his neck in a fixed position. He did not believe the plaintiff was capable of continuing with his described pre-injury employment, but thought he would be capable of returning to alternative duties that avoided the activity restrictions he referred to. However, noting the plaintiff’s age, his education to Year 9, his work experience in heavy physical activities of spray painting and ongoing neck pain, Mr Brownbill considered realistically the plaintiff would have difficulty obtaining employment for which he was suited.
166 On re-examination in November 2010, the plaintiff told Mr Brownbill a month earlier he had started work as a workshop manager in a panel shop fifteen hours per week doing light duties in the office, with no physical hands on duties and he could not do his trade any more. His sister performed his heavier household tasks and he had not been able to return to any of his hobbies.
167 The plaintiff told Mr Brownbill that he was overall the same since his previous visit. His depression, temper and stress had all become worse. He was not receiving any physical treatment and not taking any medication, apart from the occasional Nurofen tablet.
168 The plaintiff told Mr Brownbill headaches occurred at least once a week but were not associated with nausea or visual disturbance. There was more right sided pain at the back of the neck present all the time, fluctuating in severity, which restricted the plaintiff’s sleep.
169 On examination, active spinal movements were three quarters of full in lateral rotation and full in all other directions. There was a similar decrease in sensation in the area of the scalp as found on the earlier examination. Again, there was no abnormality of the upper limbs.
170 Mr Brownbill thought the plaintiff’s condition was stabilised. He confirmed his earlier diagnosis and his views as to the plaintiff’s employment capacity to engage in work avoiding heavy lifting or full cervical spine mobility, or holding the neck in a fixed position.
171 In cross-examination, Mr Brownbill confirmed there was no abnormality shown in the x-rays of 2003 and 2010. That finding was consistent with his view that none of the injuries were degenerative and also consistent with the view that a full assessment of the spine would require an MRI scan.
172 When asked whether he relied on the subjective complaints of the plaintiff, Mr Brownbill said “in great part”, but there was also the non uniform restriction of cervical spine movements.
173 Mr Brownbill confirmed all the plaintiff had said was that after six weeks off he returned to what was supposed to be light duties and he worked full time until 2007. Mr Brownbill understood the plaintiff progressively found the pain was such that he could not spray the gun properly and was unable to lean forward and spray or paint a bonnet of a car. Mr Brownbill agreed the plaintiff gave him the impression he was doing less and less spray painting. Mr Brownbill thought that the plaintiff could no longer work as a spray painter because the plaintiff told him he was in pain.
174 When the full history of the plaintiff’s post accident employment was put to Mr Brownbill, he said it would be a different history to that given to him if the plaintiff was actually performing the full time duties and not in a reduced fashion and it would need to take into account whether the plaintiff was having pain at the time of those activities and whether such pain was increasing.
175 Mr Brownbill explained that from a medical point of view, as a consultant looking at the plaintiff, he would not have had a lot of confidence in the plaintiff’s ability to be able to look back and compare his pain. Mr Brownbill would be asking for a look at the contemporary records of the doctor at the time.
176 In re-examination, Mr Brownbill was referred to Professor Ponsford’s neuropsychological assessment and Mr Brownbill discussed the factors he took into account in assessing the plaintiff on examination. Mr Brownbill was comfortable that what the plaintiff was telling him was as he saw it. It was then Mr Brownbill’s job to try and interpret what that represented.
177 Dr Strauss, psychiatrist, re-examined the plaintiff on 16 December 2010, having earlier seen him on 20 November 2008.
178 Following the first examination from a psychiatric point of view, Dr Strauss concluded the plaintiff had developed a Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood and some self consciousness regarding his scar. Dr Strauss thought there appeared to be some restrictions physically as to work, and he recommended an orthopaedic assessment.
179 The plaintiff told Dr Strauss he had lost his job some months after the accident which affected him, but he said that he was able to find a new job relatively quickly and he had worked up until a year ago, when he had stopped work because of upper body pain.
180 The plaintiff told Dr Strauss he struggled with reading and writing.
181 Dr Strauss noted that the plaintiff was preoccupied with his upper body pain. He also told Dr Strauss he did not have nightmares. Whilst the plaintiff thought about the accident daily because of his scar, he had no actual flashbacks.
182 On re-examination, Dr Strauss had available reports from Dr Nguyen, Ms Cocking and Professor Ponsford.
183 On examination, the plaintiff told Dr Strauss he still had neck and left shoulder pain and ongoing headaches as well as weakness in his hands at times. At that time his only treatment was analgesia every few days.
184 The plaintiff told Dr Strauss he did not work up until a month ago but now worked three days a weeks as manager of a panel shop doing largely administrative work and that he was aiming for fulltime work and was coping.
185 The plaintiff told Dr Strauss since he had last seen him, he had lived with a friend but now lived with his parents. He was not in a relationship but saw his ten year old daughter virtually every day.
186 The plaintiff told Dr Strauss he was reminded of the accident when he saw his scar but he had no flash backs and very occasionally he might dream of the accident. He told Dr Strauss his biggest problem was broken sleep and he always felt tired.
187 On mental status examination, the plaintiff was well presented with dirty and roughened hands. He was a little anxious and apprehensive but not particularly depressed, and he related well.
188 The plaintiff’s concentration and memory were good and there was no evidence of any psychosis or delusions or thought disorder and he was orientated in time, place and person.
189 Dr Strauss thought the plaintiff still suffered from a Chronic Adjustment Disorder with mixed anxiety and depressed mood, secondary to the affects of the accident and pain and that he still had some self consciousness in regard to his scarring which adversely affected his confidence.
190 Dr Strauss did not believe the plaintiff had any significant post traumatic stress symptoms and thought his situation was stabilised. Dr Strauss noted the plaintiff was working and he believed the plaintiff could get back to fulltime work from a psychiatric perspective, and he had no psychiatric incapacity. He thought the plaintiff did not require any treatment and noted he was in fact not having any.
191 Professor Ponsford, clinical neuropsychologist, first assessed the plaintiff on 17 April 2009.
192 In terms of his literacy, the plaintiff told her he had difficulties with reading, writing and maths and he could not read big words.
193 The plaintiff told her he had had headaches every day since the accident, getting migraines once a week at least and he also had continuing shoulder and neck pain. He felt stressed and depressed and had bad anger problems after the accident. His anger had cost him his relationship with his de facto partner, who left him a year after the accident.
194 The plaintiff told Professor Ponsford he went back to work six weeks after the accident when the defendant stopped his payments, and he got the sack five months later. He could not paint as he used to. His hand, shoulder and back became very painful holding the gun to spray and he could not pick up buckets of water.
195 The plaintiff then got another job as a head spray painter at Norsun Motors as foreman in charge. This was more supervisory so he coped with that better physically. However, he had a bad temper and got into arguments. The pain was still there and he had stopped seeing the psychologist. He became unable to cope again and left.
196 As of the May 2009 report, the plaintiff had not worked since leaving Norsun. He told Professor Ponsford that he had started three jobs but had not lasted in them for more than a week. He felt he could not physically cope. He sold his road bike, four-wheel drives and guns, and lived off the proceeds.
197 The plaintiff was then sharing an apartment with a friend and was visiting his daughter five to six days a week. He got on okay with his ex de facto partner and he managed domestically. He could not ride a motorcycle, however he could drive, but it was difficult for him to turn his head and shoulder. He said he was not really looking for work. He had had other relationships but they never lasted.
198 The plaintiff told Professor Ponsford he had nightmares and still got flash backs about the accident but he slept okay.
199 On testing, it was apparent to Professor Ponsford the plaintiff was of low average intelligence and testing was consistent with his reported longstanding difficulty with reading, writing and maths. She thought it was possible the plaintiff sustained a mild brain injury and that the observed slowness in information processing was associated with it. She thought his slowness was most likely attributed to the depression and anxiety which the plaintiff was also experiencing. Professor Ponsford thought as it was more than six years since the accident, significant further improvement seemed unlikely.
200 When first tested, the plaintiff obtained the following scores: verbal comprehension index 86 (18th percentile); perceptual organisation index 101 (53rd percentile); working memory index 84 (14th percentile); and processing speed index 69 (2nd percentile).
201 In re-examination, the results were 78, 90, 83 and 73 respectively.
202 Professor Ponsford did not believe the plaintiff had any cognitive impairment that would interfere with his employment capacity. She thought he would benefit from further psychological therapy, which may improve his chances of coping with employment in the future.
203 Professor Ponsford reassessed the plaintiff on 12 November 2010, at which time he complained of constant headaches and pain in his back and shoulders. He told her he had just started a job managing a panel shop two weeks ago, and he was working five days a week for three days. He could not cope with physical work, but organised the workers and made sure the paperwork was up to date and he was coping with it so far.
204 The plaintiff told Professor Ponsford he was managing domestically. He saw friends here and there. He had no relationship and he could not pursue his previous recreational interests, as they were too hard on his neck and back.
205 The plaintiff told Professor Ponsford he was still really stressed and depressed. He had flashbacks all the time and slept poorly, waking every couple of hours.
206 On testing, there was little change in the plaintiff’s test scores and his performances on verbally mediated tasks were in the low average to borderline range, and were generally consistent with his estimated pre morbid ability levels.
207 Professor Ponsford did not believe that the plaintiff’s capacity for employment was limited due to his head injury, noting his physical limitations. She thought he had significant ongoing psychological problems and that he may benefit from further psychological therapy in the future. She considered his recovery appeared to have stabilised.
208 Mr Stapleton, plastic surgeon, provided two reports having examined the plaintiff in 2008 and 2010. As these reports related mainly to the plaintiff’s scarring which is not the subject of this application, I do not propose to deal with them in any great detail.
209 Mr Stapleton noted the plaintiff’s embarrassment about his facial scar and that the plaintiff had difficulty performing his trade activities because of neck and shoulder pain and headaches.
210 Mr Stapleton noted that from a social point of view the plaintiff had difficulty meeting new people and from his physical symptoms, Mr Stapleton thought the injury had a profound affect on the plaintiff’s capacity to work as a spray painter and had therefore reduced his capacity to obtain and maintain employment in the competitive job market. He noted the plaintiff was constantly annoyed by the scars and rubbed at them and the area was tender. The plaintiff’s interest in meeting new people and engaging in contact sports had been profoundly affected.
211 The records of the Western Hospital set out details of the plaintiff’s attendance on 15 and 16 March 2003. He attended complaining of neck pain and a limited range of movement. The plaintiff had sustained a large laceration to the left side of his head and he denied a loss of consciousness. A collar was provided and Panadeine Forte prescribed.
212 Mr Michael Dooley, orthopaedic surgeon, examined the plaintiff on 15 December 2010.
213 The plaintiff complained of ongoing neck and occipital pain as well as pain behind his right ear and in the right shoulder girdle area. He described migraine-type headaches and headaches he felt behind his eyes and how he basically always had a headache. At times this pain could become quite intense and when severe, lasted several days. He had difficulty sleeping and he took Nurofen for pain.
214 On examination of the cervical spine, there was tenderness of the occiput and along the right side of the dorsum of the neck. There was tenderness over both shoulder girdles and along the upper thoracic spine over both scapulae. There was flexion and extension to 30 degrees. Lateral flexion to both sides was to 15 degrees and rotation to 40 degrees, with complaints of pain.
215 Mr Dooley’s diagnosis was of a soft tissue injury of the cervical spine which was consistent with the mechanism of the accident. He believed that the soft tissue cervical spine injury involved musculoligamentous damage. He noted the plaintiff had significant problems with anxiety and depression following the accident, and reported significant ongoing neck pain and headache and significant ongoing limitations in his everyday life and leisure activities.
216 In Mr Dooley’s view, accepting the injury sustained had been greater than one would expect to see for the injury sustained, now seven years after the accident, the plaintiff’s psychological condition was accounting for much of his ongoing symptomatology.
217 Mr Dooley expected, from an orthopaedic point of view, the plaintiff would note some ongoing intermittent cervical spine pain and perhaps some shoulder girdle pain. He thought no specific orthopaedic treatment was required.
218 He would have expected the plaintiff to have been carrying out a wider range of activities than he stated he was able to do, such as ride a bicycle on a track and be able to walk the dog within reasonable distances, and carry out a wide range of domestic chores.
219 Mr Dooley noted the plaintiff would have difficulty with a lot of activity at and above shoulder level and that would make it difficult for him to work regularly as a spray painter.
220 Mr Dooley considered the plaintiff fit to continue in his work as a paint shop manager and that for his overall wellbeing it was very important the plaintiff continued to work regularly. He thought the plaintiff did not require any treatment. He noted the plaintiff would experience difficulty with a lot of activity, and above shoulder level. He would note some difficulty holding his neck in a fixed position for a period of time. He thought the plaintiff’s orthopaedic injuries had stabilised.
221 Mr Dooley advised on 9 February 2011, that the plaintiff would be capable of gradually increasing his hours towards fulltime working as a paint shop manager.
Investigations
222 An x-ray of the cervical spine taken on 16 March 2003 at the Sunshine Hospital was normal.
223 A CT scan of the plaintiff’s brain was carried out at Dr Ng’s request in October 2003. It was reported that the ventricular system, basal cistern and cerebral sulci were normal. There was no intra or extra axial collection. There was no brain parenchymal lesion seen. Images viewed on bone and subdural windows demonstrated no abnormalities. In particular, there was no evidence of any fracture identified.
224 An x-ray of the cervical spine taken on 15 July 2010 was also normal.
The Defendant’s Medical Evidence
225 Dr Kostos, rheumatologist, examined the plaintiff on 13 December 2010. The plaintiff told him that about six weeks after the accident, the defendant cut off his payments and he had to go back to work, which he felt was negating any beneficial effect physiotherapy treatment may have had. The plaintiff continued to work but was retrenched in November 2003.
226 The plaintiff told Dr Kostos he returned to his doctor a second time on 5 December 2003 and was advised to continue physiotherapy. The plaintiff said “yes” and “no” to whether he got any benefit from that treatment and told Dr Kostos that some time the following year payments for physiotherapy were withdrawn and the plaintiff claimed he could not continue to afford treatment.
227 The plaintiff described constant neck pain extending to the interscapular region with pain across to his shoulder, right greater than left. His sleep patterns were poor and his pain was aggravated by activity. The plaintiff also complained of migraine headaches approximately once a month if he knocked his head for any reason. He told Dr Kostos his current treatment consisted of Panadol or Nurofen.
228 The plaintiff told Dr Kostos that he started work again in 2004 as a spray painter and was employed for about three years before having to stop work, not being able to cope with the job either mentally or physically. A month prior to the examination, the plaintiff had restarted work as a manager in a crash repair shop, which did not involve any physical work.
229 The plaintiff told Dr Kostos that he spent a lot of his time building model cars and also rock features to display his reptile collection. He was able to drive but had not been able to ride a motorcycle or go on shooting trips.
230 On examination, neck movements were reduced by approximately fifty per cent of the normal range with pain, right greater than left in all directions. Thoracic spine rotation whilst seated was also reduced to about fifty per cent of normal, with pain in both directions. The plaintiff had diffuse midline tenderness along his entire cervical and thoracic spine and the adjacent paravertebral area. He had a full range of movement of his shoulders, with pain on both sides. There was diffuse tenderness around both shoulder girdles. Neurologically his grip strength was 26 on the right and 21 on the left compared to 40, which was normal.
231 Dr Kostos was not convinced the plaintiff had any injuries in his neck or thoracic spine. He noted the plaintiff described symptoms of chronic pain and had a widespread pain response consistent with a Chronic Pain Syndrome. He thought the plaintiff did not require any treatment, other than reassurance. He considered the plaintiff did not have an injury, and he should simply be encouraged to pursue an exercise program.
232 Dr Kostos did not believe there was any physical reason why the plaintiff could not be working and he had in fact started a job recently. He suspected any interference with the plaintiff’s leisure activities related more to non physical factors which he suspected predominated in the plaintiff’s presentation and would ultimately determine his prognosis.
233 Dr Entwisle, psychiatrist, examined the plaintiff on 6 December 2010.
234 The plaintiff told Dr Entwisle that his de facto partner decided to move on due to his bad moods after the car accident.
235 The plaintiff told him he was charged with affray four to five years ago.
236 The plaintiff told Dr Entwisle, as far as his previous psychiatric history was concerned, that he had struggled with self esteem issues due to his father’s favouring of his brother, which had resulted in some significant anger management problems. The plaintiff had had no contact with his older brother due to longstanding issues between them.
237 On examination, the plaintiff continued to describe some neck and shoulder pain, headaches and tingling over his frontal region, as well as around his scar.
238 The plaintiff told Dr Entwisle he was fully capable of walking, could engage in some bending and lifting activities, as well as dressing and driving. He did a little bit of housework and shopping whilst residing with his parents.
239 The plaintiff complained his sleep was poor due to restlessness and pain. His energy levels were variable. He would get stressed out and he was subject to road rage. He became socially avoidant and lacked confidence when he looked in the mirror and saw the scar. He was always tired, sore and in pain, and felt depressed.
240 On mental state examination, the plaintiff’s affect was anxious and on edge. His affective range was restricted due to his anxiety. He was neither distressed nor visibly depressed.
241 The plaintiff’s speech showed normal stream and flow and there were no unusual notions or ideas. Dr Entwisle noted relevant issues included the plaintiff’s chronic low self esteem and anger management difficulties, aggravated by his experience of pain subsequent to the accident. There were anxious and mildly depressive themes.
242 Dr Entwisle noted that the plaintiff’s memory and concentration were intact. There were no perceptual abnormalities noted and insight was present.
243 Dr Entwisle thought the plaintiff suffered from an Adjustment Disorder with Anxious Mood. He considered the prognosis for the plaintiff’s psychiatric condition was reasonable but noted he was a man of vulnerable disposition with a tendency towards anger and anxiety as a result of chronic low esteem difficulties, noting he struggled at school.
244 Dr Entwisle considered the plaintiff’s psychiatric injuries did not interfere with his ability to work and they had aggravated his pre-existing tendencies towards anger and anxiety. He did not think the plaintiff’s involvement in the affray emanated from the accident itself.
The Defendant’s Other Documents
245 The subpoenaed material from Norsun contained a reference for the plaintiff written by a Mr Micallef. He confirmed the plaintiff was employed from 31 March 2005 to 12 June 2007 as a fulltime spray painter whose duties were to prepare and spray cars; also, he kept the spray shop clean.
246 By letter dated 4 May 2006, the defendant advised the plaintiff it had received a treatment notification plan from his physiotherapist.
247 The plaintiff was advised the defendant agreed to pay for seven standard consultations from 28 April 2006 to 26 March 2006, as requested by his physiotherapist. It was noted if the physiotherapist believed the plaintiff required additional treatment, he would need to call to discuss ongoing treatment needs.
248 By letter dated 4 June 2007, the defendant again wrote to the plaintiff about physiotherapy. The plaintiff was advised the defendant could pay for the reasonable cost of the treatment required to assist him in his recovery and that it undertook regular reviews of his treatment to ensure it was continuing to meet his needs.
249 The plaintiff was advised that the defendant had sent his treating physiotherapist a physiotherapy management review to complete and asked the plaintiff at his next appointment to sign the authority so that the physiotherapist could provide the defendant with information about the plaintiff’s progress and treatment needs.
Overview
250 Prior to the accident, the plaintiff’s health was relatively good and he had had no problems with his neck or shoulders.
251 I am satisfied the plaintiff suffered a soft tissue/musculoligamentous injury to his cervical spine in the accident.
252 Since the accident, restriction of movement and tenderness in the region of the cervical spine have been found on examination in recent times by medico- legal examiners, Mr O’Brien, Mr Dooley and Mr Brownbill. However, there were no abnormal findings on x-ray in 2003 and 2010 and there is no evidence of nerve root compression or findings of radiculopathy.
253 Dr Kostos is alone in his diagnosis of a Chronic Pain Syndrome.
254 As counsel for the defendant submitted this is essentially “a range case”.
255 The issue for determination is therefore whether the consequences of the plaintiff’s cervical spine impairment are serious. It is the impairment, not the injury, which is the relevant consideration.
Credit 256
In the absence of any significant pathology in the plaintiff’s neck, the plaintiff’s subjective complaints of pain and restriction are of particular relevance.
257
The weight to be attached to the plaintiff’s account of his pain experience will, of course, depend upon an assessment of the plaintiff’s credibility - see Maxwell P in Haden Engineering v McKinnon (2010) VSCA 69 (31 March 2010).
258
Counsel for the defendant submitted the plaintiff “said some unbelievable things” such as having a headache all day, every day, which were contradicted by him, either in his affidavit evidence or his history to doctors, and by the fact he had undergone so little treatment.
259
It was submitted that the plaintiff says the first thing that comes into his head. He does not really know what pain means – describing it as 9 out of 10 to Mr O’Brien, at a time when the plaintiff was not active or working, when 10 was the highest rating possible.
260
Counsel for the defendant also referred to the plaintiff’s inconsistent evidence as to his level of medication ranging from almost no tablets in histories to doctors, to his affidavit sworn six weeks prior to hearing, deposing as to minimal medication, to an intake of two tablets a day in cross-examination, with the plaintiff later resiling from that answer.
261
Another example relied upon was the plaintiff’s willingness to increase the number of days taken off work at Norsun due to migraine, not referred to in his affidavits, from a couple of days to twenty days.
262
Reliance was also placed on the inaccurate histories given by the plaintiff to medico legal examiners as to the level of his work after the accident and other matters such as his consistent denial of being in a relationship at the present time.
263
Counsel for the plaintiff relied largely on Professor Ponsford’s test findings in support of his submission that it would be surprising if the plaintiff did well in the witness box. It was submitted that he is “a person without resources to adequately do justice to himself”.
264
In relation to the main theme of the case, it was submitted the plaintiff was reliable, with counsel for the plaintiff posing the question - Why would he not work if he was not injured and had the pain experience he described?
265
It was submitted that the findings of medico legal examiners relied upon by the plaintiff went beyond an acceptance of the plaintiff’s subjective complaints of pain. Save for Dr Kostos, none found any evidence of exaggeration. Tenderness was found consistently on examination. It was submitted that it would be absurd to postulate the plaintiff had the capacity to somehow fool the doctors.
266
Further, there was no surveillance film or other evidence challenging the plaintiff’s claimed level of pain and disability.
267
However, I do not accept that the plaintiff’s exaggerated description of his neck pain and headaches at times and his failure to provide examiners details of his true level of work activity can be explained on the basis of a lack of intelligence or sophistication on the plaintiff’s behalf, as was attempted to be done by Mr Brownbill and Mr O’Brien on re-examination.
268
I found the plaintiff to be an unreliable witness who overstated his level of disability and gave answers which he thought best suited his case.
269
Clearly, the plaintiff could not function at his current level and have held down various supervisory roles, particularly without medical treatment if his pain was at the level of 9 out of 10 as described to Mr O’Brien or if he suffered from the headaches of the severity and frequency he maintained.
270
Complaints of that level would severely interfere with all activities and necessitate significant treatment. I accept counsel for the defendant’s submission that the continuation of a soft tissue injury does not sit well with the absence of treatment and the plaintiff’s level of activity.
271
Whilst I am entitled to take into account psychological factors which are an expected consequence of the plaintiff’s physical injury such as depression and frustration resulting from his pain or limitations as described by Ms Cocking – see Richards v Wylie (supra), that mental disorder cannot, of itself, be the producer of the impairment of a body function.
272
I accept Mr Dooley’s opinion that the constancy and intensity of the plaintiff’s ongoing symptoms he describes have been greater than one would expect to see for the injury sustained and that the plaintiff’s psychological condition was accounting for much of his ongoing symptomatology.
273
As Mr Dooley said, he would expect some ongoing intermittent cervical spine pain, perhaps some shoulder girdle pain, but he would have expected the plaintiff to have been carrying out a wider range of activities, although he would have difficulty with a lot of activity above shoulder level.
Medical Treatment
274 Save for physiotherapy and psychological counselling until early 2007, the plaintiff has had very little treatment relating to his accident injuries.
275 Having initially attended the Sunshine Hospital following what was described by the plaintiff as a frightening accident, he was then seen by two general practitioners, Dr Ng and Dr Nguyen, on a couple of occasions in 2003 for his neck complaint.
276 The plaintiff’s evidence was that Doctors Ng and Nguyen advised him there was not much wrong with him, and to take Panadol.
277 There are no notes of any attendance with Dr Ng related to any neck complaint between the end of 2003 and when Dr Ng saw the plaintiff in 2006. Dr Ng’s very brief note of 2010 simply set out the plaintiff attended him in 2010 to obtain an x-ray for Centrelink. There is no evidence from Dr Ng as to the plaintiff’s present condition, not having treated him since 2006.
278 In the absence of any further evidence from these general practitioners, I am entitled to infer that their opinions would not have been of assistance to the plaintiff’s claim. As counsel for the defendant submitted, if Dr Ng or Dr Nguyen could have been of assistance, they would have been relied on.
279 The onus is on the plaintiff to establish serious injury. It is not an answer to this issue to criticise those doctors for providing such scanty reports as counsel for the plaintiff sought to do. Neither doctor felt the plaintiff was suffering a physical injury of any great significance and accordingly, treatment was not suggested or provided beyond the referral for physiotherapy and counselling by Dr Ng. Further, those doctors cannot be criticised for not organising further investigations when they held this view and the plaintiff did not represent to them complaining of neck pain or headaches after 2003.
280 Whilst Ms Cocking reported that the plaintiff complained of chronic head, neck and back pain during the time she treated him, this pain was not such that the plaintiff sought treatment other than physiotherapy.
281 In any event, Ms Cocking’s treatment stopped nearly four years ago when funding was withdrawn. Her suggestion to take up further counselling under Medicare was not followed up by the plaintiff.
282 Clearly, the plaintiff had extensive physiotherapy in the early years after the accident having attended thirty nine times in 2003, forty six attendances in 2004, twenty two attendances in 2005 reducing to three attendances in 2006 and a final attendance on 19 January 2007, making a total of over one hundred physiotherapy attendances.
283 It was submitted by counsel for the plaintiff that in these circumstances, together with counselling attendances, the plaintiff in fact had had a lot of treatment.
284 However, I am required to consider the plaintiff’s level of impairment as at the date of hearing. The physiotherapist, Mr McGlynn, has not reviewed the plaintiff for four years, last seeing him in January 2007, noting at that time the plaintiff had returned to full employment duties and managed with an occasional exacerbation. There was no suggestion in Mr McGlynn’s report that funding for treatment had been ceased, as the plaintiff maintained was the case. Clearly, the correspondence from the defendant sets out ongoing physiotherapy was subject to further recommendations from Mr McGlynn.
285 Finally, in terms of treatment, given the plaintiff’s varying accounts of the level and nature of medication taken by him, particularly in recent times, I am unable to accept that he requires over the counter painkilling medication other than on an infrequent basis.
Employment
286 It was submitted by counsel for the plaintiff that as a result of his accident injuries the plaintiff has been unable to engage in his trade as a spray painter. Further it was submitted that because of his physical problems the plaintiff had been forced to undertake supervisory roles with which he had difficulty coping due to his limited education and low level of intellectual functioning as evidenced by the results of Professor Ponsford’s neuropsychological testing.
287 It was submitted that whilst the plaintiff had supervisory jobs after the accident, his employment situation during that time had to be viewed globally as he had in fact only worked in such jobs for some three years out of eight. It was submitted that this was not surprising as he could not cope as was demonstrated by him leaving Norsun. Further, it was submitted that the plaintiff’s current job at Memory Lane is not in a high organisational capacity.
288 I accept that as a result of his neck and right shoulder pain, the plaintiff would have difficulty engaging in spray painting duties on a full time basis. Whilst there is no treating doctor supporting this view, it was accepted by Mr Dooley, Mr O’Brien and Mr Brownbill that this was the case.
289 I do not accept Mr O’Brien’s outdated view, based on an inaccurate history in 2008, that the plaintiff is totally incapacitated for employment. Clearly, the plaintiff’s work history since the accident is inconsistent with this view and also the view expressed by Mr Brownbill.
290 It is hard to know what spray painting the plaintiff has in fact done since the accident and why he left various jobs. His evidence is unclear and uncorroborated by any witnesses who worked with him.
291 Following six weeks off work after the accident, the plaintiff did five months normal spray painting duties at Bodycorp, after which he deposed he was fired. Whilst the plaintiff was not cross-examined in this regard, Dr Ng mentioned on two occasions in his short report that the plaintiff was retrenched from this job - a history also recorded by Dr Kostos.
292 The plaintiff’s affidavit evidence in this regard was brief deposing to a return to work and difficulty spray painting and then being fired after five months. In cross-examination, he explained he was sacked because he could not perform his actual spray painting duties anymore.
293 The nature of the plaintiff’s duties in his next job as head spray painter and foreman at Norsun is in issue.
294 The plaintiff conceded he did spray painting work in his first month at Norsun but thereafter he did other light duties as he could not cope with hands on spray painting.
295 The reference from Mr Micallef sets out a different picture of the plaintiff’s duties from 31 March 2003 to 12 June 2005 describing the plaintiff as being employed as a full time vehicle spray painter whose duties were to prep and spray cars and also to keep the spray shop clean.
296 In cross-examination, the plaintiff accepted he would have to be able to spray paint to get the job as supervisor but then said as a foreman he did not have to do much.
297 The plaintiff was well paid during his two years at Norsun earning $39,000 in the first year. The plaintiff had his highest earnings ever the following year of $44,859, in work of the nature to which he aspired as an apprentice.
298 Before the accident, the plaintiff’s highest earnings as a spray painter were in the financial year 2002/3 when he grossed $30,394.
299 Counsel for the plaintiff submitted the plaintiff left Norsun because of his physical incapacity and also as he could not cope intellectually with supervisory duties.
300 However it was not until the plaintiff got into the witness box, that he really mentioned the physicality of his work as the reason he ceased this job, having deposed he in fact coped better physically at Norsun but was always angry about his physical restrictions and pain and got into arguments.
301 Further, there was no lay evidence supporting any difficulties the plaintiff experienced whilst working at Norsun.
302 The plaintiff was able to obtain a further well paid supervisory position at Keilor where he remained for three months until he was retrenched. The plaintiff’s current job at Memory Lane also involves supervisory work.
303 Whilst counsel for the plaintiff relied on Professor Ponsford’s testing results in support of his submission that the plaintiff cannot cope intellectually with supervisory work, she did not believe that he had any cognitive impairment that would interfere with his employment capacity, knowing that he was a spray painter by trade and that he worked as a foreman and supervisor.
304 Further, Dr Strauss who was told by the plaintiff that he was coping with his job as manager of a panel shop in late 2010, believed the plaintiff could get back to full time work from a psychiatric capacity and that he had no psychiatric incapacity.
305 Despite Mr O’Brien’s’ view that the plaintiff is incapable of working full time hours, I accept that the plaintiff is capable of full time supervisory work at Memory Lane but does not work full time hours at present because his Centrelink benefits would be reduced if he worked in excess of fifteen hours per week. The plaintiff’s own evidence is that he would do more work if he could get it depending on the work.
306 I am not satisfied that this work history since the accident is consistent with a picture of a man who is suffering some psychological distress that made him incapable of working as a supervisor on a sustained basis as was submitted by his counsel.
307 This is not a straightforward case of a tradesman losing his trade as a result of his injuries. Since the accident the plaintiff has gone on to where he wanted to go in his career. He would not have been accepted for these supervisory positions if he did not have the capacity to do the job, including spray painting. He is still able to use his trade in a supervisory role where he has been able to obtain employment in the past and continues to do so at the present time.
308 The employment consequences of the plaintiff’s neck injury in my view do not meet the test of seriousness.
309 Whilst there has been some interference with the plaintiff’s leisure and domestic activities, I am not satisfied that any consequences of his neck injury are serious in that regard.
310 The plaintiff continues to be able to manage household and domestic duties living with a friend. He has been in a relationship for three years. He gets on with his ex de facto and sees his young daughter every day.
311 Since the accident, the plaintiff has increased his involvement in his hobby of building model cars. Whilst he has not rebuilt a real four-wheel drive since the accident, he is still able to assist others in that regard. He maintains his reptile collection.
312 The plaintiff can drive, albeit with some restriction turning his head to the right. He drives his daughter every day and was able to share the driving to New South Wales on two occasions with his girlfriend. His evidence is unclear as to when he last rode a motorcycle.
313 The plaintiff last went shooting prior to the accident in 2002.
314 There is no evidence from friends or family members as to any interference with the plaintiff’s activities resulting from his neck condition.
315 Whilst the plaintiff has experienced pain and restriction as a result of his neck injury, particularly in the early years after the accident, given his ability to work since 2007 without the need for treatment, together with the unreliability of his evidence generally, I do not accept that any impairment resulting from his neck injury is serious as at the date of hearing is serious and long term.
316 Taking into account all the evidence, I am not satisfied that the plaintiff has a serious injury in relation to his neck and his claim pursuant to sub section (a) is dismissed.
Claim Pursuant to Subsection (c)
317 Whilst ultimately counsel for the plaintiff did not make submissions in relation to the application pursuant to sub-s.(c), I was addressed by counsel for the defendant in this regard in some detail.
318 The judgment of the Court of Appeal in Mobilio v Balliotis [1998] 3 VR 833 resolved the meaning of “severe”. Brooking JA held, at 846, having referred to the considerations mentioned in Turner v Love & Transport Accident Commission (1995) 21 MVR 314, that they were not sufficient to warrant departing from the conclusion at which one would prima facie arrive, namely that the change in language from “serious” or “severe” betokens a change in meaning. Without suggesting the use of any particular adjective to mark the distinction, His Honour said that “severe” was used in the definition as a stronger word than “serious”.
319 Winneke P, in Mobilio, agreed with Brooking JA’s reasons and further agreed with him that the word “severe”, where used in sub-paragraph (c) of sub-s.(17) of the Transport Accident Act, was a word of stronger force than the word “serious” where used in that Act: (see also Phillips JA at 858 and Charles JA at 860 to 861 to similar effect.)
320 I am not satisfied any psychiatric impairment from which the plaintiff presently suffers meets this test.
321 Since May 2007, the plaintiff has not received any counselling. At no time has he received any psychiatric treatment. The only reference to anti depressant medication was when Dr Ng prescribed Zoloft in 2003.
322 Ms Cocking reported in 2004 that the plaintiff was engaged more regularly in activity and there had been some improvement in his depressive symptoms. There was lessening treatment with her until May 2007.
323 The plaintiff’s descriptions of problems to her suggested his depressive episodes were triggered by things other than the accident.
324 In June 2007, she noted that the plaintiff typically worked longer hours to avoid thoughts of the accident. In the latter stages of the plaintiff’s treatment by her there was improvement with more consistent efforts by the plaintiff to maintain a regular eating, sleeping and working routine, and the plaintiff had begun to engage in leisure activities in 2007.
325 When she last saw the plaintiff in May 2007, Ms Cocking suggested he follow up Medicare based treatment- a course the plaintiff did not pursue.
326 As was conceded by the plaintiff’s counsel it is not psychological considerations that are stopping the plaintiff working.
327 A lot of the emphasis of the psychiatric evidence related to the effects of the plaintiff’s facial scarring, however, a disfigurement application was not pursued.
328 Medico-legal examiner, Dr Strauss, described the plaintiff’s psychiatric symptoms as moderate and did not believe he had any post traumatic stress symptoms or primary psychiatric impairment. Further, he thought the plaintiff’s incapacity to work appeared to be primarily physical.
329 On re-examination in December 2010, the plaintiff told Dr Strauss he was aiming for full time work and he was coping. The history given to Dr Strauss focussed on self-consciousness about the scarring and he was told by the plaintiff that he had no actual flash backs and nightmares.
330 The plaintiff’s viva voce evidence was that he cannot even remember how long ago it was he had his last nightmare.
331 Dr Strauss did not believe the plaintiff’s pain was psychologically based. He thought the plaintiff had no psychiatric impairment and at most a mild to moderate psychiatric reaction to the accident.
332 Dr Entwisle was of a similar view, diagnosing an Adjustment Disorder with Anxious Mood.
333 Taking into account all the evidence, I am not satisfied that the plaintiff has a severe psychiatric impairment. Accordingly, the plaintiff’s application pursuant to subsection (c) is also dismissed.
- - -
0
1
0