Stark v Toll North Pty Ltd - [2015] QDC 156

DISTRICT COURT OF QUEENSLAND

CITATION:

Stark v Toll North Pty Ltd [2015] QDC 156

PARTIES:

NICHOLAS WAYNE STARK
(Plaintiff)

And

TOLL NORTH PTY LTD (ACN 009 683 452)
(Defendant)

FILE NO/S:

3556/13

PROCEEDING:

Claim

DELIVERED ON:

19 June 2015

DELIVERED AT:

Maroochydore

HEARING DATE:

30 March - 02 April 2015; 21 April 2015

JUDGE:

Bowskill QC DCJ

ORDER:

1.        Judgment for the plaintiff against the defendant in an amount consistent with these reasons. The parties to file a proposed form of order within 7 days.

2.        Any submissions in respect of costs, or alternatively a proposed consent order if the parties are agreed, to also be filed within 7 days.

CATCHWORDS:

DAMAGES – Personal Injuries – Quantum – Liability admitted - Dispute as to nature, extent and consequences of injuries caused by workplace forklift accident.

Workers’ Compensation and Rehabilitation Act 2003 (Qld)
Workers’ Compensation and Rehabilitation Regulation 2003 (Qld)

Allwood v Wilson [2011] QSC 180
Camden v McKenzie [2008] 1 Qd R 39
Fox v Percy (2003) 214 CLR 118
Onassis & Calegopoulos v Vergottis [1968] 2 Lloyd’s Rep 403

Repatriation Commission v Bawden (2012) 206 FCR 296
State of New South Wales v Hunt 92014) 86 NSWLR 226
Thomas v Van den Yssel (1976) 14 SASR 205

COUNSEL:

J Morris for the Plaintiff

D Kelly for the Defendant

SOLICITORS:

Murphy Schmidt Solicitors for the Plaintiff

Rodgers, Barnes and Green for the Defendant

Introduction

The plaintiff was formerly employed by the defendant as a forklift driver. On 3 January 2012 he was injured in an accident at work, when a fellow worker reversed a forklift into him, striking him in the back and then, after he fell to the ground, driving the forklift over his ankles.[1]
[1][4] of the Further Amended Statement of Claim filed 30 March 2015 (statement of claim); admitted in these terms (ie the reference to driving over the ankles) in [1] and [3] of the Amended Defence filed 9 October 2014 (defence). See also [4] of the plaintiff’s submissions.
By this proceeding, the plaintiff claims damages for the injuries he says he suffered on that day. The defendant admits liability, but puts in issue the nature, extent and consequences of the injuries said to have been suffered as a result of the incident, and consequently the quantum of any damages recoverable by the plaintiff.

The plaintiff’s case

The plaintiff pleads that, as a result of the incident on 3 January 2012, he suffered the following injuries:[2]
(a)a psychiatric injury comprising: chronic post-traumatic stress disorder; or in the alternative, post traumatic anxiety or adjustment disorder with anxiety with symptoms of post-traumatic anxiety (said to be a moderate mental disorder, as defined in item 12 of the Workers’ Compensation and Rehabilitation Regulation 2003 (Regulation) with an appropriate ISV of 5[3]);
(b)lateral ligament complex injury to the left ankle (said to be a minor ankle injury, as defined in item 143 of the Regulation, with an appropriate ISV of 5[4]);
(c)musculo-ligamentous injury to the lower back (said to be a moderate lumbar spine injury as defined in item 92 of the Regulation, with an appropriate ISV of 7[5]).
[2]            [7] of the statement of claim.
[3]            [10(a)(i)] of the statement of claim.
[4]            [10(a)(ii)] of the statement of claim.
[5]            [10(a)(iii)] of the statement of claim.
Because of the existence of multiple injuries, the plaintiff claims an uplift in respect of the dominant injury[6] and claims an amount of $13,300 for general damages, representing a total injury scale value (ISV) of 10.[7]
[6] In the plaintiff’s submissions said to be either the psychiatric or lumbar spine injury (see [150]).
[7] [10(a)(iv)] of the statement of claim and [151] of the plaintiff’s submissions.
In addition, the plaintiff claims that, as a result of his injuries, he has and will suffer damages including past and future special damages, past economic loss (on the basis that he has not been able to return to work as a forklift driver since September 2012 when his employment with the defendant was terminated), and future economic loss (on the basis that he can now only undertake sedentary or supervisory employment, and will suffer a net economic loss of approximately $330 per week from now until he retires at age 67).

The defendant’s case

In its defence, the defendant effectively denied any entitlement to general damages, on the basis that:
(a)although it admits the plaintiff suffered a musculo-ligamentous injury to his lower back (a soft tissue injury to his lumbar spine)[8], it denies that is a lumbar spine injury, whether referable to item 92 in schedule 9 of the Regulation or any other item, on the basis of the medical evidence of Dr Reilly (orthopaedic surgeon), Dr McPhee (spinal surgeon) and Dr Ballenden (specialist and consultant occupational physician);[9]
(b)the defendant denies the plaintiff has suffered any mental disorder, whether referrable to item 12 in schedule 9 of the Regulation or any other item, on the basis of the medical evidence of Dr Rice (psychiatrist), Dr Whittingham (forensic psychologist), Dr Low (specialist in occupational medicine) and Dr Ballenden;[10] and
(c)the defendant also denies that the plaintiff has suffered a minor ankle injury, whether referable to item 143 in Schedule 9 of the Regulation or any other item, on the basis of the evidence of Dr Reilly, Dr Saxby (orthopaedic surgeon) and Dr Ballenden.[11]
[8] [2] of the defence.
[9] [7(b)] of the defence.
[10] [5] and [7(a)] of the defence.
[11] [6] and [7(c)] of the defence.
However, the defendant’s position at trial was that:
(a)it may be accepted that the plaintiff suffered an injury to his lower back and an injury to his ankle in the incident, and subsequently he suffered an adjustment disorder with some post traumatic symptoms which had fully resolved by June 2012;[12]
(b)the dominant injury is the lower back injury, in respect of which item 93 (minor thoracic or lumbar spine injury) is appropriate; and
(c)the plaintiff should be assessed as having an ISV of 4, raised to a 5 for the multiple injuries for which the award of general damages is $6,050.00.[13]
[12] [88] of the defendant’s submissions.
[13] [93]-[95] of the defendant’s submissions.
The defendant also puts in issue the amounts claimed under the other heads of damage claimed by the plaintiff, including:
(a)denying any entitlement to damages for past economic loss, on the basis of the medical evidence particularised in [10(d)(i) to (ix)] of the defence, which includes the evidence of Dr McPhee (that the plaintiff demonstrated “abnormal illness behaviour”, that his alleged incapacity was greater than expected from the clinical and radiological findings and that he had not suffered any impairment), and on the basis that the plaintiff’s failure to return to work is due to his unreasonable refusal to return to work as a forklift driver for the defendant, and, in essence, his choice not to return to any form of full time employment, whether as a forklift driver or otherwise;[14] and
(b)denying any entitlement to claim damages for future economic loss, on the basis that the plaintiff is and has been physically and psychologically able to return to full time work in any capacity for which he is skilled since 5 September 2012, including as a forklift driver or other manual or labour intensive employment.[15]
[14] [10(d)] of the defence.
[15] [13] of the defence.
In summary, the competing positions of the plaintiff and the defendant are as follows:

Head of damage Plaintiff Defendant

General damages $ 13,300.00[16] $ 6,050.00[17]

Past special damages, comprising:

·     Refund to Toll Group $ 51,378.65 $51,378.65[18]

·     Refund to Medicare $ 6,061.40[19] $   390.75[20]

·     Out of pocket treatment expenses $     505.50[21] ?

·     Out of pocket pharmaceutical expenses $      491.06[22] ?[23]

·     Travel expenses $ 1,743.90[24] Nil[25]

Interest on the out of pocket component of the past special damages $      124.31
Agreed on rate of 3.25%[26]

Past economic loss $160,658.12[27] Nil[28]

Interest on part of past economic loss $ 11,425.39[29] Nil

Past superannuation $ 14,459.23[30] Nil

Interest on past superannuation $    1,517.85[31] Nil

Future economic loss $400,064.45[32]
Nil

(alternatively $20,000.00[33])

Future superannuation $ 44,007.08[34] (if an award of $20,000 is made) $ 2,200.00[35]

Future special damages $ 11,842.10[36] Nil

Total $717,579.04 $57,819.40
[16]          [130]-[152] of the plaintiff’s submissions (cf [10(a)] of the statement of claim).
[17]          [95] of the defendant’s submissions.
[18]          T 5-34 and exhibit 16.
[19]          [156] of the plaintiff’s submissions; cf [10(b)(i)] of the statement of claim.
[20][96] and [97] of the defendant’s submissions, referring to exhibit 10 (plaintiff’s statement of loss and damaged dated 5 March 2014). (Whilst [96] of the defendant’s submissions refers to the statement of loss and damage of 25 March 2015, having regard to exhibits 10 and 11 (the later statement of loss and damage dated 26 March 2015) and the defendant’s oral submissions, this is clearly a typographical error).
[21]          [162] of the plaintiff’s submissions (cf [10(b)(iii) and (iv)] of the statement of claim).
[22]          [163] of the plaintiff’s submissions (cf [10(b)(vi)] of the statement of claim).
[23]          The defendant’s position was not entirely clear from its submissions.
[24]          [165] of the plaintiff’s submissions (cf [10(b)(v)] of the statement of claim).
[25][164] of the defendant’s submissions (on the basis no evidence was lead about the plaintiff’s travel expenses).
[26]          [9] of the defence.
[27]          [187] of the plaintiff’s submissions (cf [10(d) of the statement of claim).
[28][223] of the defendant’s submissions (the defendant’s submissions is that the evidence does not establish that the injury(ies) suffered on 3 January 2012 caused the plaintiff any reduction in his earning capacity from September 2012 when he refused to return to work).
[29]          [190] of the plaintiff’s submissions.
[30]          [191] of the plaintiff’s submissions.
[31]          [193] of the plaintiff’s submissions.
[32]          [203] of the plaintiff’s submissions (cf [10(h)] of the statement of claim).
[33]          [229] of the defendant’s submissions.
[34]          [205] of the defendant’s submissions.
[35]          [229] of the defendant’s submissions.
[36]          [206]-[211] of the plaintiff’s submissions.

Credibility

It will be immediately apparent from the table above that the plaintiff and the defendant are diametrically opposed in terms of the quantum of damages recoverable in respect of the plaintiff’s workplace injury.
That diametric opposition is reflected in the position put to me by each of them about the plaintiff’s credibility: counsel for the plaintiff submitted I ought to find the plaintiff to be an honest, reliable, and indeed impressive witness;[37] counsel for the defendant submitted that it would be concluded from the evidence in this case that the plaintiff is fundamentally dishonest.[38]
[37] [51] of the plaintiff’s submissions.
[38] [110] of the defendant’s submissions.
For the reasons which I explain below, I do not accept much of the plaintiff’s evidence. However, there is a difference between the rejection of a person’s evidence and a finding that he deliberately lied.[39] As Brennan, Dawson, Toohey and Gaudron JJ said in Smith v New South Wales Bar Association (1992) 176 CLR 256 at 268:
“… as a matter of logic and common sense, something more than mere rejection of a person's evidence is necessary before there can be a positive finding that he or she deliberately lied in the giving of that evidence.”
[39]State of New South Wales v Hunt (2014) 86 NSWLR 226 at [40] and [43] per Leeming JA (with whom Barrett JA and Tobias AJA agreed).
In Fox v Percy (2003) 214 CLR 118 at [30] and [31] Gleeson CJ, Gummow and Kirby JJ reiterated the caution to be exercised in assessing the credibility of witnesses, observing that, over a long period of time:
“… judges have cautioned against the dangers of too readily drawing conclusions about truthfulness and reliability solely or mainly from the appearance of witnesses. Thus, in 1924 Atkin LJ observed in Societe d’Advances Commerciales (Societe Anonyme Egyptienne) v Merchants’ Marine Insurance Co (The ‘Palitana’)[40]:
‘… I think that an ounce of intrinsic merit or demerit in the evidence, that is to say, the value of the comparison of evidence with known facts, is worth pounds of demeanour.’
Further, in recent years, judges have become more aware of scientific research that has cast doubt on the ability of judges (or anyone else) to tell truth from falsehood accurately on the basis of such appearances. Considerations such as these have encouraged judges, both at trial and on appeal, to limit their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events. This does not eliminate the established principles about witness credibility; but it tends to reduce the occasions where those principles are seen as critical.”[41]
[40] (1924) 20 Ll L Rep 140 at 152.
[41] Emphasis added.
This approach is reflected in the observation by Keane JA (as his Honour then was) in Camden v McKenzie [2008] 1 Qd R 39 at [34] that:
“Usually, the rational resolution of an issue involving the credibility of witnesses will require reference to, and analysis of, any evidence independent of the parties which is apt to cast light on the probabilities of the situation.”[42]
[42]Referring in this context to the decision of the Full Federal Court (Carr, Emmett and Gyles JJ) in Expectation Pty Ltd v PRD Realty Pty Ltd (2004) 140 FCR 17 (which in turn, at [67], refers to Fox v Percy). See also New South Wales v Hunt (2014) 86 NSWLR 226 at [56].
Also reflecting the significance of contemporary documents, is the following comment made by Lord Pearce in Onassis and Calegopoulos v Vergottis [1968] 2 Lloyd’s Rep 403 at 431 (in the context of a helpful discussion regarding credibility and reliability)[43] that:
“It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active. For that reason a witness, however honest, rarely persuades a Judge that his present recollection is preferable to that which was taken down in writing immediately after the accident occurred. Therefore, contemporary documents are always of the utmost importance.”
[43]Referred to with approval by Allsop P (as his Honour then was) in Withyman v State of New South Wales [2013] NSWCA 10 at [65].
It seems to me that the doubt about the ability of judges to determine whether someone is telling the truth based on how a witness appears in court is also reflected in Associate Professor (Dr) McPhee’s candid comment (to which further reference will be made below) that he could never say, just by talking to a patient, that they are consciously being dishonest about symptoms they describe, as opposed to their presentation of complaints being at a subconscious level.[44] But as against that, Dr McPhee does express an opinion about the inconsistency between the plaintiff’s subjective complaints and the objective clinical and radiological findings.
[44] See paragraph [114] below.
What I have found, upon a close and careful analysis of the whole of the evidence, is that in many respects I cannot accept what the plaintiff says, because of the inconsistencies between his evidence, and what appears in contemporaneous records made by the large number of medical practitioners he has seen over the last almost 3 and a half years (and indeed inconsistencies as between those medical practitioners, in terms of what they have recorded the plaintiff as telling them). The plaintiff’s evidence simply does not withstand that close scrutiny.
In carrying out that analysis, I have divided the medical evidence into the following sections:
(a)the evidence relating to the rehabilitation period, up to September 2012 (when the plaintiff’s employment was terminated);
(b)the evidence after the rehabilitation period, in terms of expert opinion gathered in the context of this litigation;
(c)the evidence beginning with the plaintiff’s attendance on a new GP, Dr Salinas, in November 2013, and the various referrals to specialists made by Dr Salinas;
(d)the surveillance footage, and comments in relation to that; and
(e)seen in light of the foregoing, the evidence from the occupational therapists, from March 2013 and June 2014.
Before turning to my analysis of the evidence, I note the following general point. A number of matters from the medical reports were put to the plaintiff during his cross-examination, which were inconsistent with his evidence at trial. In the face of those inconsistencies, he frequently denied having said things which are recorded in doctors’ notes or reports. In general, I have taken the view that what the doctors have recorded, in their clinical notes or reports, is based on what the plaintiff has told them at the time.[45] They are contemporaneous notes, made by professionals who have no interest in the outcome of this proceeding, and in my view are more reliable than what the plaintiff says he remembers now.
[45]This was confirmed by many of the medical practitioners who gave evidence at the trial: for example, Dr Reilly at T 2-65.24; Dr Saxby at T 3-6.32; Dr Salinas at T 3-43.45 and T 3-50.36 – T 3-51.10; Dr Wallace at T 3-57.45; Dr Arocena at T 3-102.8; Mr Singleton at T 4-99.38.
I am reinforced in that view by the fact that it was apparent from the plaintiff’s evidence that he did not have a good recollection of all of his attendances on the various medical practitioners.[46] I do not criticise him for that, as it is perfectly understandable, given both the time frame involved, and the number of people he has seen. But it does reinforce the greater reliability of contemporaneous records made by the relevant practitioners of those attendances.
[46]Likewise, he told Dr Ballenden when seeing him in January 2014 (exhibit 1, tab 23, p 3[1.8]) that he had seen specialists but had “no clue as to who they were or who he saw”.

Circumstances pre-accident

The plaintiff was born on 3 April 1991. He was therefore aged 20 at the time of the accident, and is 24 now. He left school in 2006, at the end of grade 9. Following that, he worked in a few different places, before commencing work for the defendant in February 2011, as a forklift driver, at the defendant’s NQX warehouse at Eagle Farm.[47]
[47] T 1-20.46 to T 1-22.23.
When working for the defendant, the plaintiff said that he worked the afternoon shift, from 4pm to 12pm. About 85-90% of his work was on the forklift. He said there would be anywhere from 40 to 50 forklifts operating, per shift, on an average day.[48]
[48] T 1-22.27-.42.
He is now married, to Sandy Lee Stark. They were married in January 2013, although had been together since about 2010. The plaintiff said that prior to the accident, they enjoyed rock climbing, owned 3 motorbikes which they would “try and get out on” at least every fortnight, he owned two classic cars they were restoring together, and went to the movies. He said their sex life was “very good”.[49]
[49] T 1-23.45 – T 1-23.20.
The plaintiff was cross-examined about his pre-accident interests, by reference, among other things, to his application for employment with the defendant, which listed playing soccer, going fishing and “working hard” as his “major interests”,[50] but made no reference to rock climbing, surfing, running or restoring cars.[51] His attention was also drawn to what he told the psychiatrist, Dr Mathew (namely that he was no longer able to play rugby, jet ski and ride his trail bike), things not mentioned on his application form.[52] The plaintiff’s wife also gave evidence about the recreational activities they had previously enjoyed, referring to rock climbing, surfing, hiking, motor bike riding and “everything active really”.[53] I do not take much from these apparent inconsistencies. I accept that the plaintiff and his wife were young, active people with a variety of interests, and that in various contexts (for example, an application for employment), a person might not necessarily refer to all their various interests.
[50]          Exhibit 6.
[51]          T 3-17.10.
[52]          T 3-15.
[53]          T 4-82 – T 4-83.

Likewise, attention was drawn by the defendant to the plaintiff having lied on a number of occasions, including on his application for employment with the defendant, about having completed year 10.[54] Although dishonest, in the context of the issues I have to determine, I do not place a great deal of emphasis on this. It is perhaps understandable that in today’s labour market, someone in the plaintiff’s position, having left school at year 9, would be tempted to make their education level sound better.   However, in the context of the plaintiff’s claim for a very large sum of money for past and future economic loss, it is noteworthy that he has not taken any steps to complete year 10, or year 12 for that matter, and he acknowledged there is no impediment to him doing this, “apart from the financial side of things”.[55]
[54]          See T 3-18 – T 3-19.
[55]          T 3-19.25-.31.
The plaintiff and his now wife had plans to get married in 2012, and wanted to have a “big wedding with all our friends and family and we planned to go to Thailand for our honeymoon”.

The accident: 3 January 2012

The plaintiff said he does not recall a great deal about the incident. In his evidence in chief he said:
“I was at work. I’d just started. I went to help a co-worker unload the trailer that he was doing. We’d pulled the curtains and we were removing the straps. I was pulling down a strap and the forklift was coming from behind me and reversed into me. The next thing I recall after that is waking up on the ground, sort of coming to and there was a lot of people around me. … I had sharp pain in my back and pain through both of my ankles.”[56]
[56] T 1-24.38 – T 1-25.2.
There are a number of variations of the incident recorded by the numerous doctors and other medical professionals the plaintiff has seen since the accident, on the basis of what the plaintiff told them. Notable variations are: what the circumstances of the incident were;[57] whether he hit his head[58] and whether he lost consciousness;[59] what happened to his left ankle, in particular whether it was fractured.[60]
[57]For example: Dr Reilly recorded that the plaintiff said the counterweight hit him in the back as the forklift rolled over his feet and he was knocked to the ground (exhibit 1, tab 2); Dr Bradfield recorded that the forklift reversed into him and struck the low lumbar region of his spine and “as a result he was pushed forward on to the ground landing on his right hip and the forklift ran over the lateral aspect of the left ankle and the medial aspect of the right ankle” (report dated 19 September 2014, part of exhibit 1, tab 16); Dr Salinas recorded that he said he was “hit at the back on the right side, pushed a little forward then fell on his left side” (exhibit 1, tab 16, p 4 of the notes); Dr Low recorded that he “said that he fell face first to the concrete, knocking his head and losing consciousness briefly” (exhibit 1, tab 24, p 1).
[58]Which he told Nancy Stephenson, occupational therapist, (exhibit 1, tab 17, p 3); Dr Hayes (as above); and Dr Bradfield (as above).
[59] Nancy Stephenson and Dr Low (as above).
[60]As he told Dr Wallace (exhibit 1, tab 13, p 2); Dr Mathew (exhibit 1, tab 1, p 3); and Dr Low (exhibit 1, tab 24, p 1). His left ankle was also said to be fractured in the notice of claim dated 22 October 2012 (question 41) (exhibit 9). The (only) source of the suggestion that the plaintiff’s left ankle was fractured is a letter from Michelle White, physiotherapist, dated 13 January 2012, addressed “to whom it may concern”. I infer it is a letter to the plaintiff’s employer (because it refers to a belief that the plaintiff would benefit from another week off work). In this letter Ms White, after referring to the left ankle being “extremely tender on palpation and very painful with ultrasound over the calcaneus, just below the lateral malleoli”, said “[t]his can suggest a small fracture, although it has not shown up on the x-ray. I do believe he may have a small fracture as well as significant bone bruising” (exhibit 1, tab 60).
In cross-examination when these various inconsistencies were put to him the plaintiff acknowledged that he does not recall the incident, and that in what he has told various people since then he is not sure whether he is remembering the moment before he was hit, or whether it is something he has created based on what other people have told him.[61]
[61] For example at T 2-13.45; T 2-26.9; T 2-34.8; T 4-53.8.
No witness to the incident was called. This is no doubt because the pleaded circumstances were largely admitted by the defendant (with the clarification that the forklift drove over the plaintiff’s ankles, rather than his legs as originally pleaded). Other than as part of the broader attack on the plaintiff’s credit, the mechanism or circumstances of the incident are not significant in terms of the issues to be decided. In so far as the attack on credit is concerned, it is not surprising to me that, given the number of medical practitioners the plaintiff has seen in the course of this litigation, there is some variation in what he has told them. Perhaps it could be said that, to the extent that he did not simply tell them he does not recall, and chose to embellish the circumstances in various ways, that reflects a preparedness to depart from the truth for his own gain. But there are more significant and concrete reasons for making the findings that I do in this matter, and I do not base my conclusions on these digressions.

Circumstances after the accident

Following the accident, the plaintiff was taken by ambulance to the Royal Brisbane and Womens Hospital. The ambulance records note that the plaintiff was complaining of ankle pain, both left and right, and lower back and buttock pain.[62]
[62] Exhibit 1, tab 25 (part of hospital records).
X-rays were taken at the hospital on 3 January 2012, which showed no fractures (of the pelvis, lumbar spine or left ankle).[63] The hospital records show he was diagnosed with a left ankle sprain (for which he was given a compression bandage, crutches and pain relief) and lumbar pain (for which he was given pain relief). He was discharged that same day[64] and his now wife took him home.
[63] Exhibit 1, tab 25.
[64] Exhibit 1, tab 25 (page 1 of 6).
The plaintiff said that over the next week, he was suffering from severe pain through his lower back and left ankle, had difficulties moving around and showering etc. His now wife assisted him. He was having difficulty sleeping, because of the pain and because he couldn’t stop his mind thinking about what had happened.[65]
[65] T 1-25.34 – T 1-26.29.
The plaintiff gave evidence of having nightmares, saying “[t]hey weren’t about any really thing in specific other than me injuring myself – just getting hurt” and said they continued frequently (3 or 4 times a week) for six to eight months.[66] He referred to working with a psychiatrist (which I infer is Dr Rice[67]), using techniques to reduce the dreams.
[66] T 1-26.43 – T 1-27.22.
[67]Given the timeframe in which the plaintiff was seeing Dr Rice, and having regard to Dr Rice’s evidence at T 3-95.37-.41, that in treating the plaintiff in early 2012 he was using a “desensitising procedure” aimed at eliminating the nightmares.
By about 3 weeks after the accident, he said there had been “significant improvement” in his ankles, but not in his lower back.[68]
[68] T 1-26.37.
It is apparent the plaintiff was provided with considerable assistance by the defendant in terms of his rehabilitation and returning to work. The large body of medical evidence put in evidence at the trial was in part contributed to by the significant efforts at rehabilitation undertaken by the defendant.
The plaintiff returned to work at the beginning of April 2012, initially on “light duties” which the plaintiff described as “in the office with the administration employees, sorting consignment notes into their relevant pigeon holes”. He started just with 2 hours, and then increased each week. When he first returned to work, he still had some pain in his left ankle, as well as pain in his back.[69]
[69] T 1-29.45 and T 1-30.29-.34.
He had returned to doing full hours by about June/July 2012. By that time, he said he had made his way back onto the warehouse floor. He was still doing consignment notes in the office as well as working on the warehouse floor, scanning and placing bar codes on palettes. He was not yet driving a forklift.[70]
[70] T 1-31.1-.10.
The plaintiff gave evidence about his attempts to drive a forklift post the accident. Of his first attempt (he could not remember when this was) he said that he hopped on to the forklift, turned it on and drove it away, but “[a]fter two to three minutes, I started to experience very sharp pain in my lower back. I didn’t last any more than five minutes on the actual forklift driving it”. He then told his manager, Mark Davies that he was experiencing severe pain in his back and needed to go home so that he could take his pain medication.[71]
[71] T 1-33.28-.40.
He referred to feeling pressured by work to get back on the forklift, referring to Giacinta[72], the rehabilitations officer, telling him that reports had come back from doctors saying he is all right to drive a forklift and that they (presumably the defendant) wanted him to do so.[73]
[72]I infer this is a reference to Giacinta Gardiner, an employee of the defendant, to whom reference was made in the evidence (but who was not called at the trial).
[73] T 1-33.45 – T 1-34.10.
Following that he seems to have had a couple of days off work (he referred to seeing Dr Sidhom in this context).[74]
[74] T 1-34.
About 2 to 3 weeks later, the plaintiff had a second attempt. He said he only vaguely recalled it. He referred to “driving around the warehouse” and “just from the jerking motion [which he said was a bouncing motion] that just increased and I got a sharp pain in my back.” Again, he went home.[75]
[75] T 1-35.
He had a third attempt, but could not remember when that was. He said the same thing happened, he experienced a sharp pain through his lower back, and he lasted no more than five minutes.[76]
[76] T 1-36.
The plaintiff’s employment with the defendant was terminated in September 2012, in circumstances where he refused to agree to a return to work program which involved him starting at 4 hours per day on the forklift, and gradually increasing back up to 7 hours per day. I will return to the evidence concerning this below, but turn now to the medical evidence relating to the rehabilitation period up to September 2012.

Medical evidence – rehabilitation period, up to September 2012

At the time of the accident, the plaintiff was seeing Dr Farid Sidhom as his GP. Dr Sidhom saw the plaintiff a number of times in January 2012. Dr Sidhom’s notes of the plaintiff’s attendances on 6, 10, 17 and 20 January 2012 do not make express reference to back pain, and it was put to the plaintiff in cross-examination that he did not complain to Dr Sidhom of back pain on those occasions. The plaintiff insisted that he did.
On 25 January, Dr Sidhom recorded “still c/o sore lower back couldn’t go to work today”,[77] which seems to suggest a continuing complaint. Also, in another part of these notes, referring to “investigation requests”, there is a reference to a request on 25 January 2012 for an x-ray of the lumbo-sacral spine, with the note “sore lower back 3/52”. On that basis, I do not draw any adverse inference from the fact that there is no earlier mention in the notes of back pain. It seems uncontroversial that at this early stage the plaintiff had a sore back.
[77] Emphasis added.
Dr Sidhom referred the plaintiff to Dr Reilly, an orthopaedic surgeon. A number of reports from Dr Reilly were tendered, as well as her clinical notes.[78]
[78] Exhibit 1, tab 11.
Dr Reilly first saw the plaintiff on 8 February 2012. In her letter of that date, to Dr Sidhom, she said (after referring to the circumstances of the injury):
“He was taken by QAS to Royal Brisbane Hospital and at that stage his ankle were investigated more so than his low back. His ankles are now much better, but he has had unfortunately constant back pain which feels like an increase in pressure in his low back. It is worse if his [sic] lies or sits for long periods and he is not sleeping well. He is not taking any pain killers currently although he was taking Endone, but he has run out. He has not pins or needles or weakness in his lower limb or radiculopathy.[79] His bowel and bladder function are normal.”[80]
[79]As explained by Dr Reilly, radiculopathy is a nerve effect, “It’s usually when a nerve is compressed either at the spinal cord level or at the nerve root’s exiting, and you see it in disc protrusions etcetera”: T 2-65.40.
[80] Exhibit 1, tab 2. Underlining added.
She sent him for an MRI “just to exclude any subtle fractures”. The MRI was normal.
In relation to the MRI being normal acutely post injury, Dr Reilly confirmed that if the impact [of the injury] was significant, “you could see hematoma in the paraspinal muscles. Even within three months of injury, bone bruising would be present and occasionally you can see soft tissue oedema. So just even swelling in the soft tissues are able to be seen on MRI even in a couple of months down the track which I still call it acute”.[81] There was none of that on the plaintiff’s MRI, from which it can be inferred the impact was not significant.
[81] T 2-68.38-.43.
Dr Reilly subsequently wrote a report, addressed to Ms Karen Jeanes of the defendant, dated 15 February 2012.[82]   In this report, Dr Reilly noted (second paragraph) that “[h]is ankles are much better and he does not report any ongoing problems with them, however, he does have constant low back pain”.[83] Dr Reilly expressed the opinion that the plaintiff has a soft tissue injury to his low back, and being soft tissue alone, should recovery completely. She also said she would expect the plaintiff “will dramatically improve within the next four to eight weeks”, and therefore be able to return back to normal duties in that time period. In her oral evidence, she confirmed that the plaintiff did not complain to her of any pain or instability in his left ankle.[84]
[82]          Exhibit 1, tab 3.
[83]          Emphasis added.
[84]          T 2-66.20.
In the period from 27 February to 1 March 2012 the plaintiff participated in a “specialist pain management program” conducted by Cor Health and Rehabilitation (Cor). Having completed that program, the plaintiff continued to be overseen by Mr Singleton and Ms McCook, the coordinators of the rehabilitation program run by Cor, until about August 2012.
Reports from Cor dated 6 March 2012 and 29 August 2012 are in evidence.[85] The reports appear largely to have been written by Mr Singleton (a specialist pain management physiotherapist), but also include the observations of Ms McCook (a physiotherapist and exercise physiologist) on her physical evaluation of the plaintiff. Ms McCook also gave evidence of her observations as she assisted with the plaintiff’s rehabilitation and return to work, in the period up to August 2012, by reference to her email correspondence with the defendant in that period.[86]
[85]Exhibit 1, tab 27 (the document bears the date 6.2.2012, but Mr Singleton confirmed the date should be 6.3.2012) and tab 28. Mr Singleton confirmed that the reference to “Dr Finlay” in the reports should be a reference to Dr Reilly: T 4-99.
[86] Exhibits 14 and 15.
In the first report dated 6 March 2012, Mr Singleton noted, among other things, that:
(a)the plaintiff expressed frustration with his progress and that he “would like to actively undertake strategies to ensure functional recovery and RTW[87] ASAP” (p 1);
(b)the plaintiff also expressed concern “he may not regain the function necessary to actively regain activities of daily living” (p 1);
(c)the plaintiff reported “he can handle sitting / driving for up to 40 minutes. He can walk for 30 minutes and does this regularly at home on the treadmill a few times per day for his fitness and back rehabilitation” (p 2) (the plaintiff denied that he was doing this a few times a day);[88]
(d)the results of the DASS test (the self-reporting depression, anxiety and stress test) administered at the commencement of the pain management program, revealed results of 16 for depression (moderate), 10 for anxiety (mild) and 22 for stress (moderate) (pp 2-3).[89]
[87]          Return to work.
[88]          T 4-61.27.
[89]          T 4-100.5.
The plaintiff saw Dr Reilly again on 14 March 2012, on which date Dr Reilly reported back to Dr Sidhom:
“I have seen [the plaintiff] today, he has had some improvement but just marginal. He is now only taking prn[90] analgesia but he still has pain and he rates it as about a six out of ten. It is all in his low back region. He did core strengthening course which he thinks has helped him and he is also starting hydrotherapy. He is keen to start some light duties which apparently are starting in two weeks time…”[91]
[90] As required.
[91] Exhibit 1, tab 4.
On 29 March 2012 Dr Reilly wrote to the defendant again, advising that
“Nicholas’ limitations are any heavy lifting, no squatting or bending. I don’t want him operating any machinery or doing any significant pushing or pulling with weights. On my WorkCover certificate, I wrote desk duties should be all that’s considered at this point.”[92]
[92] Exhibit 1, tab 5.
Around this time, on 22 March 2012, the plaintiff was referred by the defendant to Associate Professor (Dr) Bruce McPhee, spinal surgeon. Dr McPhee produced a report dated 28 March 2012.[93] Under the heading “current status” (p 2), Dr McPhee recorded:
“There is a complaint of constant low back pain likened to pressure. He also experiences transient sharp pinching pain when he lies down. He rates his pain generally as 6 on a 10 point numerical scale. There are no lower limb symptoms.
Pain is aggravated by prolonged sitting, standing and walking such that he constantly has to change position. He says that he has a sitting tolerance of 45-60 minutes and a walking tolerance of 30 minutes. Bending is restricted and painful. He claims that his pain is not relieved when lying down and hence he has difficulty getting to sleep. Bladder function is unaffected. He has no lower limb symptoms.
Currently he is taking Mobic for pain. Physiotherapy and hydrotherapy are ongoing. He is unmarried and single and lives with his girlfriend but does nothing around the house. Personal care is independent. He did not complete a high school education but has a ticket to operate a forklift. He has no other trade or tertiary qualifications.”[94]
[93] Exhibit 1, tab 18.
[94] Emphasis added.
Of his own examination of the plaintiff, Dr McPhee recorded:
“The claimant is of average height and thin build. His posture and gait were normal. Examination of his back shows no visible injury. He could walk on his heels and toes, squat. Pain was reproduced on axial compression and pseudorotation.
The range of lumbar spine movements was generally reduced. He flexed 40º to reach his knees. When seated with legs extended he could reach beyond mid-shin.
Straight leg raising was to 70º bilaterally without nerve root tension. Deep tendon reflexes were normal. He demonstrated global cogwheel weakness throughout the left leg but the power was normal. Sensation in both lower limbs was normal. Tenderness was noted over the lower lumbar spine.
During the examination a number of abnormal clinical findings were noted consistent with abnormal illness behaviour.”[95]
[95] Emphasis added.

Dr McPhee noted that an MRI scan of the lumbar spine done on 14 February 2012 was normal.
Dr McPhee expressed the following opinion:
“Diagnosis
There is material evidence that [the plaintiff] suffered a work place injury when struck in the back for (sic) a forklift on the 3^rd January 2012…
Nonetheless although he relates his symptoms to the lumbar spine, the MRI scans are normal, there being not even evidence of degeneration or injury. The clinical examination is essentially normal. The extent of his incapacity is greater than would be anticipated given the clinical and radiological findings.
There is an ongoing complaint of low back pain with no radicular signs or symptoms. There is voluntary restriction of lumbar spine movements with some abnormal clinical signs.
…
Treatment
On the basis of the clinical presentation surgery is not indicated. Physical therapies are unlikely to result in any substantial or sustained improvement and may serve only to reinforce invalidity. Ongoing treatment depends on self-management of pain with appropriate analgesia or any other modality found to be helpful. A regular exercise program to improve lumbar spine mobility, trunk strength and aerobic fitness is advised. To this end referral to a rehabilitation program for work hardening and cognitive behavioural therapy may be of some benefit.
Functional Incapacity
In the absence of any injury or underlying cause for back pain and an absence of any significant impairment of the lumbar spine, the extent of the claimant’s incapacity is greater than might be anticipated. Nonetheless he continues to complain of pain which functionally interferes with his mobility and capacity to undertake manual tasks. There is nothing on examination at the present time which would preclude [the plaintiff] from undertaking semi-sedentary work which includes light manual tasks. In this regard a suitable duties program should once again be tried. If he is being sent for work hardening rehabilitation then the commencement of such a program should be geared to follow the program.
Consistency of Presentation
The history of the incident is consistent with an injury. Radiological studies show no significant structural injury has occurred and there is no underlying cause to explain his continuing symptoms. Clinically there were a number of findings which were not consistent with organic low back disease indicating abnormal illness behaviour.
Questionnaires completed at the time of examination show a moderate level of stress which is likely to dictate the level of activities he is prepared to undertake. Yellow Flag questionnaires identify fear avoidance beliefs and psychological issues as potential risk factors in the development of a chronic pain syndrome. For this reason cognitive behavioural therapy is important in rehabilitation. …”[96]

[96] Emphasis added.
In her email dated 30 March 2012, Ms McCook provided recommendations for a return to work program for the plaintiff, starting with 3 hours in the first week, and working up to 6 hours by the fourth week. On 4 April 2012 Ms McCook wrote a further email, noting that the plaintiff “is progressing slowly with his rehabilitation now…”, but also that “he fortunately is very keen to return to work”. In her oral evidence, she confirmed that at this stage, she was starting to notice that the plaintiff’s rehabilitation was not progressing at a pace that would be expected, having regard to the nature of the injury (primarily soft tissue, no structural damage).[97]
[97] Exhibit 14; T 5-3.37.
Dr Reilly saw the plaintiff again on 26 April 2012, and reported to Dr Sidhom that:
“I have seen [the plaintiff] today who really is much the same since his last visit. He is managing 4 hours a day 3 days a week and he thinks he is able to upgrade to 5 hours a day. I really don’t have much to offer him except a bit of reassurance. I have kept him on light duties for another two months as I think this is realistic and he should continue all of his physio and gym program. I haven’t arranged to see him again as I really don’t have anything to offer and I am sure you can manage his upgrade WorkCover certificate.”[98]
[98] Exhibit 1, tab 6. Emphasis added.
Dr Reilly said that, at this stage, she had exhausted any treatment that she could provide as an orthopaedic surgeon, saying “[h]e had a normal MRI and, generally, most people who have an injury that – nothing significant shows up on their MRI – go on to improve significantly so they can return to their job. So I assumed at that point that that would be [the plaintiff] and he would improve so that he would get back to work”.[99]
[99] T 2-66.45 – T 2-68.3.
The plaintiff confirmed that the “light duties” referred to here was the work that he described in his evidence, putting consignment notes into pigeon holes etc. He had not been out on to the factory floor yet.[100]
[100] T 2-15.43.
Ms McCook’s email of 9 May 2012 refers to the plaintiff continuing “to progress slowly but steadily”, and at the gym his strength levels remaining “quite low, 1-2 plates”. Her email of 14 June 2012 records that the plaintiff had told her he had some relief following the injections (said to be the facet joint injections[101]) and that his “pain level was decreasing from a 6/10 to a 4/10 on a daily basis”.
[101]This is consistent with what he told Dr Rice, that they “produced a slight improvement” (exhibit 1, tab 66, p 1) and Ms Nancy Stephenson, that he found these beneficial (exhibit 1, tab 17, p 3). On the other hand, the plaintiff reported to a GP at Medibank Health Solutions Pty Ltd on 1 June 2012 that they gave no significant relief (exhibit 1, tab 12) and reported to Dr Wallace (exhibit 1, tab 13, p 2), Dr Ballenden (exhibit 1, tab 23, para 1.9), and Dr Bradfield (exhibit 1, tab 16) that they gave no relief. The point made by Dr Rice was that since he had no significant change after these injections, that suggested facet joint pathology was not the cause of the plaintiff’s back pain (exhibit 1, tab 22, p 2).
As part of the rehabilitation program organised by the defendant, the plaintiff saw Dr Graham Rice, a psychiatrist, who also specialises in pain medicine, on about 6 occasions. Dr Rice provided a report to the defendant dated 7 August 2012.[102] In this report, referring to an attendance by the plaintiff on 12 June 2012, Dr Rice recorded:
“At that time he was working 7 hours per day 5 days a week, including ‘on the (warehouse) floor as much as I can’. He said he was still not physically fit enough to try forklift driving.
He said that mentally he was feeling better, and had no more troublesome dreams, and minimal anxiety when he is on the floor.”
[102] Exhibit 1, tab 66.
The plaintiff did not accept that he would have said he had no more troublesome dreams.[103]
[103] T 3-16.36; T 4-25.36.
Dr Rice also prepared a further report, dated 19 January 2015.[104] This report largely contains comments by Dr Rice on the reports of other doctors, with Dr Rice noting that he had not seen the plaintiff again after June 2012.[105] However, it also includes notes based on review of Dr Rice’s clinical file, from his original appointments with the plaintiff in the first half of 2012. The notes for June 2012 are consistent with what appears in Dr Rice’s August 2012 report, set out above. On that basis, and on the basis of Dr Rice’s oral evidence,[106] I accept that the plaintiff told Dr Rice in June 2012 that he had no more troublesome dreams.
[104]         Exhibit 1, tab 22.
[105]         T 3-96.
[106]         T 3-95.37-.41.
Ms McCook’s email of 26 June 2012 refers to her review of the plaintiff on 20 June. In this email, she records that:
“He seems very apprehensive to return to normal forklift duties, but with further questioning for clarity of why, it was determined to be little to do with the forklift, but more to the concern of effect of repetitive lifting and carrying / loading and the potential for reinjury. He is also not sure how his back will be with the jostling on the forklift.”
In this email Ms McCook makes reference to a return to forklift activities plan being “developed with Giacinta, with a goal of increasing his exposure, but doing so in a controlled manner to start with, progressively increasing the time and nature of tasks as the weeks progress”. She also notes that “[h]is long term goals are unclear as he doubts his ability to get back to work – hence reassurance and progressive increase is important to facilitate his recovery”.
Dr McPhee saw the plaintiff again on 28 June 2012, and provided a report to the defendant dated 5 July 2012.[107] In this report, Dr McPhee recorded that the plaintiff “states that there has been improvement although less than 50% compared with the lower back at its worse. Improvement is ongoing”.
[107] Exhibit 1, tab 19.
In terms of “current status”, Dr McPhee recorded:
“[The plaintiff] says he has good days and bad days. The low back pain is constant and rated at 5 on a 10 point numerical scale. The pain is confined to the back with no lower limb symptoms relating to his back.
Pain is mechanical in nature being worse with bending, twisting, prolonged sitting and prolonged standing. He says he has a sitting tolerance of about an hour while bending is limited. He gets some relief when lying down. Bladder function is unaffected.
[The plaintiff] takes Endone 2 or 3 days a week. He says he attends hydrotherapy in a gym program at his own cognisance nearly everyday. Personal care is independent. Activities of daily living are not restricted but slower than normal.”[108]
[108] Emphasis added.
Of his own examination of the plaintiff on this occasion, Dr McPhee recorded:
“The claimant had a normal posture and gait. He could walk on his heels and toes. Lumbar spine movements were mildly reduced in all planes. He could flex 50º to just reach his knees. When seated with legs extended he could reach beyond mid-shin. Restriction of flexion is voluntary. Straight leg raising was to 70º bilaterally without neural tension. Deep tendon reflexes, power and sensation in both lower limbs were normal. Tenderness was noted over the lumbosacral junction.”
Dr McPhee diagnosed the plaintiff as having suffered a soft tissue injury to his lower back. He noted the continuing complaint of low back pain without radicular signs and symptoms, and voluntary restriction of lumbar spine movements.
In terms of prognosis Dr McPhee said that:
“It is now six months since the injury and more than likely he will have continuing symptoms. This is of no concern. He has suffered no significant structural injury to the back. His condition and (sic, is) stable and stationary.”
No specific treatment was said to be required.
In terms of “functional incapacity”, Dr McPhee said:
“This gentleman’s functional recovery has been inordinately slow due to introspection on behalf of the claimant and an overcautious return to work program. There is no reason why he should not have been back on the forklifts much sooner than now. He is back doing full-time work. He should be put back on the forklifts with the aim of returning him to full duties within the month. His condition has reached maximum medical improvement.”[109]
[109] Emphasis added.
Ms McCook’s email of 11 July 2012 refers to her having spoken to Dr Rice on that day, and Dr Rice maintaining that “as long as [the plaintiff] is allowed to draw out the process on his own terms he is likely to do so”. In this email, she makes reference to “all avenues including the medical information that have been forwarded to TOLL all state the same – There is no apparent reason for him to not be able to return to those duties in a gradual process as indicated and discussed with him. His lack of willingness to trial this workplace activity is more of a decision rather than an inability to do so”. In her oral evidence, she explained that at this time:
“So we were progressing … through his return to work process and attempting to get him to upgrade. The initial response was the concern was the sitting and the lifting and the loading and those elements, and so we were targeting that with his physical recovery. And then it came through a little bit more clearly that he had indicated there was concerns and avoidance with getting back onto the forklift for psychological reasons. So Dr Rice had assessed him a couple of times and Toll had come back to me again and said, look, you know, we are at between a rock and a hard place. We can’t get him to progress, and asked me to talk to Dr Rice to see him again. And Dr Rice’s response was basically along the lines of what I reported back to Toll in that email that we’d covered things from a physical aspect and after six months of rehabilitation I’d expect him to be tolerating a lot more. We sort of tackled that as well as we could. So the indication was there seems to be something other than physical that’s driving his inability to return.”[110]
[110] T 5-5.3-.16.
That seems to have prompted the defendant to refer the plaintiff to a psychologist for assessment (I infer this was Mr Whittingham, referred to below). In her email of 11 July, no doubt reflecting a view Ms McCook had by then formed about the accuracy of the plaintiff’s self reporting, Ms McCook says, “[p]lease ensure the psychologist [the plaintiff] has been referred to receives supportive documentation as provided by reports so he has a clear picture of his presentation beyond his discussion with [the plaintiff]. Similarly, double check the GP has also received all the supporting documentation available so he also has a clear picture of the information beyond the conversation in the consultation”.[111]
[111] Exhibit 14.
On 24 July 2012 the plaintiff saw Dr Ian Low, who is described as a specialist in occupational medicine, as part of the defendant’s rehabilitation efforts. His report dated 30 July 2012 is in evidence[112] but he was not called to give evidence at the trial. Dr Low records the plaintiff telling him “that he experiences shooting pains down the backs of his legs to his knees when the pain in his lower back is more severe”. Dr Low’s “summary and conclusions” includes the following:
“… [The plaintiff] said … that he has continued to experience constant low back pain increased by physical activity. He said that the more the tightness in the musculature of his lower back, the more he experiences the pain.
[The plaintiff] told me that he feels he is lucky to be alive and tries to look at what occurred in a positive way (ie he is alive) as, otherwise, he gets depressed. He said that he feels anxious and tense while walking in the warehouse, particularly so when forklifts are reversing near him. He has become frustrated with how he perceives he has been treated since the accident. He said that he has been told to return to forklift driving and put up with the pain. He also feels that people do not believe him.
The continued reporting of low back pain is due to the tightness in his spinal musculature consequent upon the continuing disturbance in his emotional functioning. He can be viewed as suffering from an Adjustment Disorder with associated tightness in his spinal musculature. He needs to receive treatment for his condition. Physical therapies and cognitive behavioural therapy orientated to modifying his pain experience would not be expected to be effective in settling his low back pain.
[The plaintiff] needs to be provided with strategies and techniques so that he does not develop (as much) tightness in his spinal musculature when exposed to forklifts, particularly when forklifts are reversing close to him. I would suggest that those strategies and techniques are implemented in the workplace in conjunction with a psychologist. He would require up to six sessions with the psychologist.
As [the plaintiff] is able to progressively decrease the tightness in his spinal musculature consequent upon his emotional functioning, he will be able to perform more physical activities, which increase the muscle tightness, without reporting pain. I would suggest that, once he is provided with the appropriate strategies and techniques to control his anxiety, he progressively increase the amount of time he drives a forklift until he is driving full time. Until he has successfully implemented the psychological strategies and techniques, he should perform physical exercises to reduce muscle tightness regularly throughout the day.”[113]
[112] Exhibit 1, tab 24.
[113] Emphasis added.
There can be seen to be some escalation in the description of the incident in this report, in terms of the plaintiff saying he feels “lucky to be alive”. Likewise, the description of “shooting pains down the backs of his legs to his knees”, seems to suggest an escalation and is a new complaint, which was not reported to Dr McPhee, who the plaintiff had seen just one month earlier, on 28 June.
In his August 2012 report,[114] Dr Rice referred both to Dr McPhee’s report, and also to Dr Low’s report (noting the contrast between what was seemingly reported to Dr Low, and what was reported to Dr Rice, the latter that “he [the plaintiff] said he was managing well”). Dr Rice said:
“With this discrepancy between the reports to various practitioners, he needs to follow Dr McPhee’s advice and return to activity on a graded basis (including increasing his tolerances on the forklifts) with the knowledge that ‘hurt does not equal harm’.”
[114] Exhibit 1, tab 66.
Dr Rice confirmed that in his opinion the plaintiff’s “Adjustment Disorder with Anxiety” had resolved (when he saw the plaintiff in June 2012) and said:
“His ongoing pain behaviours, noted by Dr McPhee to be exaggerated, probably relate to factors undisclosed to me. They may include the industrial issues outlined by Dr Low in that he does not always feel believed at work…
His current restrictions are largely self imposed, and need to be reduced by following the appropriate physiotherapy advice (as had been provided by Donna McCook), and he must apply these in the workplace with gradual increase in his tolerance driving forklifts if he is going to achieve his goal of returning to that work.”
In so far as Dr Low was recommending onsite psychological therapy, Dr Rice also expressed the view that “[i]nvolving other practitioners risks reinforcing him in the sick role, his pain behaviour and any belief he has of ongoing significant impairment. Because of the risks of reinforcing his pain behaviour, the necessity for further on-site therapy help needs to be carefully considered”.
As seemingly foreshadowed in Ms McCook’s email of 11 July 2012, the defendant did arrange for the plaintiff to see Mr Whittingham, a forensic psychologist, as part of the rehabilitation process. Mr Whittingham interviewed the plaintiff at the defendant’s premises on 17 July 2012, over 3½ hours. Mr Whittingham prepared a report dated 21 August 2012.[115] Among other matters addressed in Mr Whittingham’s report, he recorded that:
“[The plaintiff] stated he has tried getting back on the forklift, and that its not the little bouncing around that increases pain, but no suspension and hard rubber tyres jarring his back he considered does hurt his back. Mr Stark reported he had attempted to return to forklift driving 4 times and this was 2 months ago and each time he ‘didn’t last 10 minutes, as pain started when took off and started driving’. Mr Stark reported minimal anxiety associated with approaching and being around forklifts.”[116]
[115] Exhibit 1, tab 67.
[116] Emphasis added.
In relation to the first sentence, the plaintiff denied he said this (that is, that it was not the bouncing around that increases pain).[117] In fairness to the plaintiff, that first sentence is somewhat unclear in terms of what is meant.
[117] T 4-30.34.

In the course of his lengthy interview with the plaintiff, Mr Whittingham conducted an assessment which involved the plaintiff driving a forklift under his supervision. In his report, Mr Whittingham recorded that:
“Observation at site revealed no overt signs of anxiety working on the site floor, traversing the floor space, getting onto and starting the forklift and driving the forklift under evaluation. Pre and post subjective units of distress revealed no anxiety related distress. Preoccupation with back jarring and onset of pain was described.”[118]
[118] Exhibit 1, tab 67, p 9. Emphasis added.
Mr Whittingham administered the DASS test, and the results were within the normal range.[119]
[119]Exhibit 1, tab 67, p 8. In the report, it is said this was done on 17 August 2012. But in his oral evidence Mr Whittingham said it pertained to the week before his evaluation (which was said to have occurred on 17 July 2012). There is seemingly a typographical error in one or other of these dates, but it does not affect the substance of his evidence.
In terms of his clinical diagnoses, Mr Whittingham expressed the following opinion (at pp 9-10):
“[The plaintiff’s] symptomatology appeared consistent diagnostically with criteria for an Adjustment Disorder with Mixed Anxiety and Depressed Mood (DSM IVTR: 309.28: Acute); full clinical threshold likely reached February 2012 and persistence to July 2012. The identifiable stressor(s) to this symptomatology likely being his lumbar injury and its impact functionally on his activity. Mr Stark’s anxiety appeared specific to the forklift accident, and his condition appears to have fully resolved, with no ongoing negative mood symptomatology evident on review. Mr Stark’s current clinical presentation appeared consistent with a Pain Disorder Associated with Both Psychological Factors and a General Medical Condition (DSM IV TR: 307.89-724.2 = Chronic) given: (1) the resolution of his lumbar strain; (2) pain in his lumbar region has been the main focus of his clinical presentation and has warranted clinical attention; (3) this pain is causing impairment in his occupational functioning; and (4) psychological factors appeared to have been playing a role with his pain (ie fear of re-injury, anxiety towards forklifts, fear of not recovering, feeling hopeless and helpless with respect to pain); (5) his adjustment condition pervading his recovery process.”[120]
[120] Emphasis added.
I note that it was not pleaded that the plaintiff suffered from a pain disorder; nor was this pressed in any way at the trial.[121]
[121] T 5-26.
On 22 August 2012, Mr Singleton sent an email to Karen Jeanes of the defendant, copied to Ms McCook, which appears to respond to a recommendation made by Mr Whittingham for the plaintiff to attend a pain management clinic. Mr Singleton notes that the plaintiff has already done this with Cor and there is no need for him to do it again. In her email of 22 August, Ms McCook responded, expressing her agreement with Mr Singleton’s comments, and further making the comment that the plaintiff has “consistent inconsistencies with his reports” (the fear of forklifts v the pain on driving given as an example).[122]
[122] Exhibit 15.
For a time, between June and August 2012, the plaintiff saw another GP, a Dr Emerson Arocena, from Medibank Health Solutions Pty Ltd.[123] He first saw another doctor in that practice, on 1 June 2012.
[123] Exhibit 1, tab 12.
Dr Arocena saw the plaintiff on 8 and 22 June, 6 July and 7 August 2012. In July 2012 Dr McPhee’s reports dated 28 March 2012 and 5 July 2012 were provided to Dr Arocena.
Following this, on 7 August 2012, Dr Arocena wrote a letter addressed to Giacinta Gardiner, of the defendant:
“I have reviewed [the plaintiff] today. My recommendation will be based on Dr Mcphees recommendation that is for Nicholas to go back to normal or usual duties and the treatment is mainly self rehabilitation. Nicholas is a forklift driver and the main trigger for pain in his lower back is actually driving the fork lift. He is also on gradual return to work program as far as I am aware but he has no success. I have been realistic to Nicholas since I first reviewed him in our clinic, at present he still has subjective on and off pain, which is mostly related to forklift driving. If that is the case the only option left for him is to stop driving forklift and possibly change work. I advised him to talk to you if there is any other option for him.”
It seems this letter was given to the plaintiff, to give to Ms Gardiner, which he did. The plaintiff said he then had a discussion with Ms Gardiner about other work tasks that he could do, and the plaintiff’s evidence was that she suggested he could be trained to work in the radio room.[124] Mr Andrew Hack, the regional manager of the defendant for Brisbane and New South Wales, in his oral evidence confirmed that was not in the context of retraining the plaintiff for another role, but only to provide alternate duties until he could resume forklift driving. He said it was never to be a full time position, and nor did one exist at the time.[125]
[124] T 1-38.44 – T 1-40.
[125] T 2-84.37-.43.
In his second report dated 29 August 2012,[126] Mr Singleton noted that on that date the plaintiff “presents reporting reduced lower back (VAS 4-5/10 worst[127]) levels” and that he “demonstrates a grade 4+ or higher functional core strength” (p 5). In his oral evidence he explained that the plaintiff had attained the maximum functional strength required as part of the rehabilitation program, grade 4+ being what is considered reasonably necessary to undertake anything that would be typical of activities of daily living, including work-related duties. When asked if that would have been sufficient for him to carry out duties of a forklift driver, he said “You would think so”.[128]
[126] Exhibit 1, tab 28.
[127]VAS refers to a visual analogue score for reported pain (subjective pain report): T 4-102.45 – T 4-103.4.
[128] T 4-100.42 – T 4-101.30.
Mr Singleton administered the DASS test again on 29 August 2012, and the results were 2 for depression (normal), 0 for anxiety (normal) and 6 for stress (normal) (p 6).
Mr Singleton stated, at the end of the report that, given the subjective and objective progress outlined in the reassessment of the plaintiff outlined in the report, he was “discharging [the plaintiff] from our supervision as it is my view that he has attained maximum medical improvement for his presentation from the intervention he has undertaken to date”.
It is apparent from Mr Singleton’s patient notes[129] that when seeing the plaintiff on 29 August 2012, the plaintiff told him he was finding his lower back was aggravated from an increase in overtime; that he can tolerate floor duties and office duties with pain, but not forklifting; and that he is concerned forklifting will aggravate if he continues so he refuses to return. Mr Singleton’s notes record that he advised “trial for another 4-6 weeks at current hours to see if pain levels reduce”. In cross-examination, when it was put to him that this recommendation did not appear in his report of 29 August, Mr Singleton explained that the plaintiff was by then “on his maximum hours. It doesn’t mean he needed to undertake rehabilitation. So we discharged him”.
[129] Exhibit 13.
On about 3 September 2012 a return to work plan was presented to the defendant, which showed him increasing over a 3 week period, from 4 hours a day forklift driving (with 4 hours other “suitable duties”), to 6 hours (with 2 hours of other suitable duties), then to 8 hours forklift driving.[130]
[130] Exhibit 1, tab 39.
The plaintiff said he was given this document by Giacinta Gardiner, and asked to sign it. He refused, saying “I told her that I’ve attempted to drive forklifts already on numerous occasions and I couldn’t do so because of the pain, the aggravation I get in my back. And I – it says on here to start off with four hours a day and I was struggling to do five minutes so I didn’t see that I could complete this”.[131]
[131] T 1-41.
The plaintiff was then issued with a “show cause” letter dated 3 September 2012.[132] As Mr Hack explained:
“We had had various medical opinions, psychological assessments done and all of them had come back to us saying that Mr Stark was fit for normal duties, and given the period of time that we had been engaged with the rehab plan and getting ready, we felt that we exhausted all medical options. We’d been to – you know, a plethora of specialists and psychological assessments and so forth who all said that he was fit to return to work, so we took the approach that, well, we considered him to be fit and therefore, you know, we got him in for a meeting and asked him to resume normal duties.”[133]
[132] Exhibit 1, tab 47.
[133] T 2-81.1-.12.
The plaintiff said that when he received the letter, he tried to get an immediate appointment with Dr Reilly, to see what she had to say. He could not get an appointment with her until later in September. So he went to his then GP instead. Dr Sidhom’s notes refer to an attendance by the plaintiff on 4 September 2012, on which occasion Dr Sidhom recorded: “Pt arrived today asking for a medical certificate confirming that he isn’t allowed to drive the Fork lift as he gets lower back pains when he drives. Has been advised to see the treating Dr Mcphees who recommended that he should go back to work for normal duties … [unclear due to copying] mainly self rehabilitation”.[134] Dr Sidhom did not give the plaintiff a medical certificate. It seems the plaintiff did not return to Dr Sidhom after this.
[134] Exhibit 1, tab 26.
When the plaintiff went to work on 4 September 2012, he attended a meeting with Mr Hack (and other staff of the defendant, but the evidence is somewhat inconsistent as to who[135]), and a union representative the plaintiff took with him. Essentially the plaintiff was told to either commit to the return to work program by signing it, or his employment would be terminated. Since he would not sign the plan, his employment was then terminated.[136]
[135]The plaintiff thought Giacinta Gardiner and Mark Davies were also there. Mr Hack thought Andrew Nottingham was there.
[136] T 1-42 – T 1-43.
The plaintiff did go to see Dr Reilly, on 18 September 2012, following which Dr Reilly reported back to Dr Sidhom:
“[The plaintiff] has come to see me today as he has been told he should be on normal duties by workers compensation. Nicholas has been on full hours for some time now and when he attempts to drive forklifts then his pain is exacerbated. He does wake at night with pain regardless of what work he does. I have explained to [him] that at nine months following his injury he is really stable and stationery as his symptoms haven’t changed in some time. This doesn’t necessarily mean he is 100% better and he certainly is unable to drive forklifts and I have recommended, that as he no longer has a job, that he look for alternative work which would not involve such jerking activities. I haven’t arranged to see him again.”[137]
[137] Exhibit 1, tab 7. Underlining added.
Dr Reilly’s notes of 18 September 2012 record that the plaintiff “managed full hrs on light duties, no pain”, but “when driving fork lift – more pain”, and “occas wakes with pain 3 out of 7 nights”.[138]
[138] Exhibit 1, tab 11, p 3.
Dr Reilly explained in her oral evidence that, in writing the second last sentence set out above, she was essentially making an assumption that he was driving a forklift on uneven rocky ground, and that driving the forklift involved jerking (which she explained was her own assumption, not something the plaintiff said to her).[139] In cross-examination she was asked whether she would place any restriction on him driving a forklift, if she was told the surface where the plaintiff was driving the forklift was a smooth concrete surface, and that there is no bumping associated with the driving. She said “[n]ot if I thought that he was driving a smooth surface in a well padded forklift fleet without any jerking”, although added that she would always restrict a person within their pain allowances and would have increased his tolerance as able.[140] That is, I infer from Dr Reilly’s evidence that, as a treating practitioner, she would rely upon the subjective complaints of pain from her patient, in terms of making recommendations to them about their levels of activity. I do not interpret her statement that “he certainly is unable to drive forklifts” as being based on anything other than that.
[139] T 2-63.16; T 2-67.22; T 2-71.5.
[140] T 2-67.19-.30.
Mr Hack described the surface of the site at Eagle Farm as “pre-tilt slab construction”, with minimal joins (normal expansion joints that you get inside a warehouse), which were maintained regularly with caulking. He said it is what is called in the trade a “broom finish”.[141] The plaintiff’s evidence was also that the floor surface of the defendant’s factory where he worked was smooth finished concrete.[142]
[141]         T 2-77.24-.29.
[142]         T 2-40.31 – T 2-41.31
I will return to this issue, regarding the activity of driving a forklift, in addressing the occupational therapist, Nancy Stephenson’s evidence below, but turn now to the medical evidence in the post-rehabilitation period.

Medical evidence – post-rehabilitation period

Dr McPhee

Although Dr McPhee did not see the plaintiff again, he was asked by the defendant, in September 2012, to provide an assessment of the plaintiff’s impairment of the injury to his lower back, which he did on the basis of his two prior assessments and reports. In his third report, dated 25 September 2012,[143] he described the “current status of the lower back injury” as follows:
“[The plaintiff] has mechanical low back pain without lower limb symptoms. He has voluntary restriction of lumbar spine movements. His straight leg raising and neurological examinations were normal. There was clinical evidence of abnormal illness behaviour indicating amplification of his symptoms and impairment. An MRI scan of his lumbar was normal indicating no obvious underlying cause for his ongoing symptoms.”[144]
[143] Exhibit 1, tab 20.
[144] Emphasis added.
In the result, Dr McPhee determined that “[t]here is no impairment (the claimant has symptoms without objective evidence of impairment by way of loss of movements or neurological signs).”
In relation to the plaintiff’s evidence that he had tried to return to driving a forklift, and on each occasion had reported, after two to three minutes, suffering from sharp pain that was caused by jolting or jarring of the forklift, Dr McPhee said, in his oral evidence that:
“I think the issue here goes far beyond the physical injury.
… with every injury there is a sort of psychological process that goes with it, and just because somebody doesn’t get back to work it doesn’t mean that physically he wouldn’t be capable of getting back to work, but there are other issues that block his return to work, and … There are a number of abnormal clinical findings and there were a sufficient number to say that at time he had abnormal illness behaviour.”[145]
[145] T 4-43.21-.30.
Dr McPhee described abnormal illness behaviours as “inappropriate physical findings that are not consistent with the perceived underlying condition, and which can be found by alternative testing to be not appropriate, to be inaccurate”.[146] In the case of the plaintiff, Dr McPhee said the “abnormal illness behaviours” are the behaviours he lists under “current status” on p 2 of his report dated 28 March 2012,[147] which is set out at paragraph [57] above.
[146] T 4-43.36-.39.
[147] T 4-47.30.
When asked, with respect to abnormal illness behaviour, whether there is an element of truthfulness or otherwise with respect to the presentation of the complaints, Dr McPhee said:
“Look, the vast majority, it’s at a subconscious level, and I could never say just by talking to a patient that, you know, it’s at a level higher than that and they are conscious what they do. And that’s why I say you really need independent observations. This is where video surveillance comes into it, yes. Every now and again you’ll get somebody who’s, you know, caught … riding her dune buggy and jet ski and bush bashing on a motorbike. I mean, people with back problems don’t go round doing those. They don’t lift lounges – three seat lounges. They don’t – you know. But, you know, most people, it is subconscious. It’s the way they’ve developed their disorder.”[148]
[148] T 4-48.13-.23. Emphasis added.

Dr Wallace

On 13 November 2012, the plaintiff was seen by Dr Malcolm Wallace, orthopaedic surgeon, for the purposes of a medico-legal report, at the request of his then solicitor. Dr Wallace provided a report dated 20 November 2012.[149] In terms of “current symptoms”, Dr Wallace recorded that:
“Your client states that he has ongoing lower back pain. This is mechanical in nature, worse with any bending, lifting or twisting. It radiates intermittently into both lower limbs and posterior thighs without neurological symptomatology.
With respect to his ankles, he states that his right ankle has settled but he has ongoing recurrent inversion sprains in his left ankle and has problems walking over rough ground. There is no pain in the left ankle.”
[149] Exhibit 1, tab 13.
In the “further history” section of his report (p 2) Dr Wallace recorded: “He states that his ankle pain settled but he continued to have lower back pain”. In his oral evidence Dr Wallace said what that means is that “his ankle was not giving him any more pain”.[150]
[150] T 3-58.17
In relation to the reference to pain radiating intermittently into both lower limbs and posterior thighs without neurological symptomatology, Dr Wallace confirmed he is here referring to general pain radiation, as opposed to true nerve pain.[151] Similarly, Dr McPhee said, of what Dr Wallace recorded, “that’s referred somatic pain. That’s not radicular pain. Radicular pain doesn’t go into two legs; it can only go into one leg, because it only catches one side, whatever the cause is. And radicular pain should always go below the knee”.[152] Dr McPhee also confirmed that when he saw the plaintiff there was absolutely no indication of any pain below the buttock (based on a pain drawing the plaintiff did).[153] Likewise, the plaintiff had made no such complaint to Dr Reilly, either before this date, or after (see discussion below of the plaintiff’s attendance with Dr Reilly on 4 September 2013).
[151]         T 3-59.27.
[152]         T 4-46.27-.34.
[153]         T 4-47.5.
Dr McPhee’s evidence was that there is “no scientific or reasonable explanation” why a person such as the plaintiff, with a soft tissue injury, with a normal MRI, who had not previously had such pain, and without any complaint of performing any strenuous activity, would complain of radiation of pain down the back of his thighs, sometimes to the knee.[154]
[154] T 4-48.33.
The significance of this issue is that for a DRE II impairment rating, such as Dr Wallace gives the plaintiff, the patient has to have radicular pain (whether verifiable or not).[155]
[155] See AMA 5 at chapter 15, p 382 and table 15-3. See also Dr McPhee at T 4-47.14.
In terms of Dr Wallace’s reference to having ongoing recurrent “inversion sprains”, I note that Dr Saxby (referred to below) said that an “inversion sprain” implies damage to the ligaments, as opposed to your ankle just giving way, with no sprain, and if the plaintiff is not reporting any pain, then he probably is not having “inversion sprains”.[156] Dr Wallace, in his oral evidence, said his impression from his notes is that what the plaintiff was describing was a feeling of instability – that is, a giving way of the ankle - as opposed to a true sprain.[157]
[156] T 3-7.1-.24.
[157] T 3-59.35 – T 3-60.8.

In so far as the plaintiff continued, up to the end of August 2012, to complain of low back pain, after a time when both Dr Reilly and Dr McPhee say they would have expected improvement for a soft tissue injury, and say they could find no reason, based on their objective clinical and radiological findings, why the plaintiff would be in pain, I consider that Dr McPhee’s analysis, of the plaintiff displaying abnormal illness behaviours, to be persuasive.
In this context, the evidence of Mr Singleton of the point that the plaintiff had reached, physically, by August 2012, can be seen to be consistent with the views expressed by Dr Reilly and Dr McPhee.
I also accept Dr McPhee’s evidence, that there is no scientific or reasonable explanation why a person such as the plaintiff, with a soft tissue injury, with a normal MRI, who had not previously complained of pain radiating down the back of his legs, would subsequently develop such pain, as was reported to Dr Wallace.
Importantly, Dr Wallace’s report of that kind of pain, radiating into both lower limbs and posterior thighs:
(a)is only based on the plaintiff’s self-report;
(b)was confirmed by Dr Wallace to have been a self report of general referred pain, not radicular pain; and
(c)is inconsistent with what was reported to Dr Reilly and Dr McPhee, both of whom had seen the plaintiff on more occasions, and at an earlier time. It is also inconsistent with the later report of Dr Reilly, in September 2013 (that there was no radiation), and likewise the report of Dr Ballenden in January 2014.
Given that one of the criteria for rating a person’s impairment as being within DRE II includes “nonverifiable radicular complaints”, and there being no other objective clinical findings which fit the criteria for DRE II, it is difficult to see on what basis Dr Wallace has expressed the opinion that the plaintiff has a DREII category impairment of the lumbar spine according to Table 15.3 of the AMA5, with a 5% whole person impairment.[275]
[275]Exhibit 1, tab 13, p 5. Although Dr Wallace’s report does not state how that percentage has been calculated, in the terms required by s 11 of schedule 8 of the Regulation, I note that 5% is the bottom of the range for DRE II (the range being 5%-8%).
Further, Dr Wallace’s clear evidence was that his impairment rating of the plaintiff was based entirely on the history of the plaintiff’s back pain radiating into the lower limbs. Given the findings I have more broadly made about the reliability of the plaintiff’s evidence, this too diminishes the weight that I am prepared to give Dr Wallace’s opinion.
Those matters, taken together with the finding I have otherwise made about the nature and duration of the plaintiff’s back injury, leads me to prefer the opinion expressed by Dr McPhee that the appropriate category is DRE I, being a 0% impairment.

Pelvis / hip symptoms (pain on urination, defecation and sexual activity)

In relation to the symptoms reported to Dr Salinas in November 2007, and subsequently explored with various specialists, I accept Dr Reilly’s evidence that these were new symptoms, unrelated to the soft tissue injury to the plaintiff’s back sustained in January 2012.
In circumstances where the plaintiff was seen by multiple orthopaedic surgeons, and a spinal surgeon, in the year following the accident, and at no point mentioned any of these symptoms, I do not accept the plaintiff’s evidence that he had experienced these symptoms since the accident at work. The plaintiff’s complaints to Dr Salinas can be seen, in context, to reveal an escalation of the subjective reporting of complaints by the plaintiff, inconsistent with the objective medical evidence.
Dr Salinas is clearly a well-meaning, caring and compassionate medical practitioner. Faced with a patient, the plaintiff, complaining to her of having been in pain for more than two years, she did everything she could to try to find some answers for him, which included referring him to multiple specialists and requesting a number of tests. I do not criticise Dr Salinas for taking a thorough and comprehensive approach to treating her patient. But nor can I reach the view that the steps she recommended can be causally linked to the injury the plaintiff sustained at work in January 2012. On the contrary, on the evidence that I accept, they were not.

Left ankle

I find that the plaintiff did suffer a soft tissue injury to both his ankles on 3 January 2012, with the right ankle fully resolving fairly quickly, and the left ankle taking a little longer.
As early as 8 February 2012, the plaintiff was reporting to Dr Reilly that his ankles were much better. When he saw Dr Wallace in November 2012, although he had no pain, he apparently reported to Dr Wallace a feeling of instability, or giving way, in his left ankle. About 7 months later, in June 2013, Dr Saxby reported that the plaintiff had some minor ongoing discomfort in his left ankle (on the basis of the plaintiff’s report of intermittent pain in his left ankle, that it feels somewhat insecure but gives way very infrequently). Dr Saxby found the left ankle to be stable to ligamentous testing. The x-ray of the left ankle which was done at Dr Wallace’s request was normal.
I prefer the opinion of Dr Saxby, that there is a zero degree of permanent impairment with respect to the plaintiff’s left ankle. Dr Wallace’s opinion is based on speculation, that is, that an x-ray which he performed could be expected to show instability (which is a necessary pre-requisite for an impairment rating above zero in table 17-33 of the AMA 5). However, the x-ray does not show that, and in addition, Dr Saxby, being a specialist in disorders of the foot and ankle, has examined the plaintiff and found no excessive movement.
Moreover, Dr Wallace does not explain how the percentage of impairment (4%) is calculated, as required by s 11 of schedule 8 of the Regulation. Table 17-33 prescribes percentages of impairment, by reference to the amount of ligamentous instability, measured in mm, whether mild (2-3mm), moderate (4-6mm) or severe (more than 6mm). A 4% impairment represents moderate instability. In the absence of any evidence, on the stress x-ray, of such instability, not only does Dr Wallace speculate that there is nonetheless such instability, but then further speculates that it would be moderate.
Although by no means determinative of the issue, I note also that there was no indication in the surveillance footage of the plaintiff experiencing any difficulties with his left ankle.

Mental disorder

At an early stage, on the basis of the evidence of Dr Rice and Mr Whittingham, I find that the plaintiff suffered from an adjustment disorder with anxiety.[276]
[276]Although referred to in various ways in, for example, the pleadings and submissions, this seems to be the appropriate description of the disorder, on the basis of the evidence of Dr Mathew, Dr Rice and Mr Whittingham.
The evidence of Dr Rice and Mr Whittingham is that that condition had resolved by the time Mr Whittingham saw the plaintiff in July 2012. By that time, Mr Whittingham observed no overt sign of anxiety in the plaintiff when working on the site floor, traversing the floor space, getting onto and starting the forklift, and driving the forklift under evaluation. However, he did observe the plaintiff to be preoccupied with back jarring and onset of pain.
Dr Low, on the other hand, described the plaintiff as (still) suffering from an adjustment disorder, in his report of 30 July 2012.
On this issue, I prefer the opinions of Dr Rice, a psychiatrist, who saw the plaintiff on 6 occasions, and Mr Whittingham, a forensic psychologist, who spent some 3½ hours with the plaintiff in his employment setting, to that of Dr Low, a specialist in occupational medicine. It is apparent from Dr Low’s report that the plaintiff was presenting to him, both with an escalated description of the impact of the incident, and with an escalation of his physical symptoms, as well as his anxiety symptoms, which in my view affects the weight of the opinion expressed by Dr Low.
The opinion expressed by Dr Mathew, who saw the plaintiff in November 2012, was that the plaintiff had developed PTSD, rather than anxiety disorder, following the accident.
As outlined above, there are also a number of inconsistencies in what the plaintiff reported to Dr Mathew, when compared with what he had earlier told Dr Rice, and what Mr Whittingham observed.
In particular, the plaintiff’s evidence about working on the floor around forklifts, prior to his employment being terminated in September 2012, tends to undermine the opinion expressed by Dr Mathew, that the plaintiff (in November 2012) was unable to work in an environment where he is a pedestrian in proximity to forklifts. It is apparent, from the PIRS worksheets attached to Dr Mathew’s report that this was a significant contributor to his impairment rating. Likewise, Dr Mathew seemed to rely on the plaintiff’s report of nightmares continuing, which contrasts with him telling Dr Rice in June 2012 that he had no more troublesome nightmares.
In addition, I am unpersuaded by Dr Mathew’s evidence about the basis for diagnosing the plaintiff as suffering post-traumatic stress disorder (PTSD), in circumstances where, even if the event (that is, the accident involving the forklift) could be described as one involving actual or threatened serious injury, there was certainly no evidence of the plaintiff’s response to the event involving intense fear, helplessness or horror (the plaintiff had no memory of the event, after the forklift reversed into him). The first of the diagnostic criteria for PTSD is in fact exposure to a particular kind of traumatic event, which has these two elements.[277] That is, a traumatic event of a particular kind is necessary for a diagnosis of PTSD at a medical level.[278] PTSD can only be diagnosed as an illness or disease in terms of a traumatic event and, where that diagnosis is in question, it is a matter of fact for the tribunal of fact (in this case, this court) to determine whether the alleged event was of that character.[279]
[277]This criterion is set out in Repatriation Commission v Bawden (2012) 206 FCR 296 at [19]. The comments of the Full Court in this case about diagnosis of PTSD are applicable here, notwithstanding the particular statutory context of a veterans’ entitlements claim, because issues of diagnosis are dealt with on the balance of probabilities, rather than on the basis of the unique reverse criminal standard referred to in s 120(1) of the Veterans’ Entitlements Act 1986 (Cth).
[278] Ibid, at [44].
[279] Ibid, at [47]-[51].
In cross-examination, Dr Mathew acknowledged that he had effectively made an assumption as to the plaintiff having a fear of death from the incident, “based [on] the man being kind of crushed by a forklift and being quite badly injured”.[280] But as was put to him by the defendant’s counsel, there was no crushing of the plaintiff, he was hit by a forklift travelling at, it seems, a low speed, fell to the ground, and has no recollection of the event. Further to this, as noted above, it can be inferred from the fact that the MRI acutely post injury was normal that the impact on the plaintiff was not significant.
[280] T 3-107.45.
It was apparent there was no basis for Dr Mathew to say the plaintiff’s reaction to the event was one of intense fear, helplessness or horror. Dr Mathew maintained his own diagnosis of PTSD, but, fairly, acknowledged that, in the absence of this criterion, there was a “very valid argument” that the diagnosis of adjustment disorder was appropriate.[281]
[281] T 3-113 – T 3-114.
Dr Mathew said whether he was diagnosed as having PTSD, or an adjustment disorder, the treatment would be the same. He also said the assessment of impairment would also be the same.[282]
[282] T 3-114.11-.13.
As to the latter, as a general proposition that may well be correct; but as I have already noted, the difficulty I have with Dr Mathew’s PIRS rating (regardless of the diagnosis) is the inconsistency in the evidence, as between what was reported to Dr Rice and observed by Dr Whittingham, and for that matter Mr Singleton; as well as the plaintiff’s own evidence about his ability to work in proximity to forklifts; and what was reported to and found by Dr Mathew.
On balance, I do not accept the evidence of Dr Mathew in terms of his diagnosis of PTSD, and prefer the evidence of Dr Rice, confirmed by Mr Whittingham, of a diagnosis of adjustment disorder with anxiety. Because I do not accept Dr Mathew’s diagnosis, and having regard to the factual matters that in my view undermine his assessment of a PIRS of 5%, I do not accept that as an appropriate rating
By the end of August 2012 the plaintiff was clearly still unwilling to drive a forklift, on the basis that, he said, it caused him pain to do so. Accepting, as I do, the evidence of Dr McPhee and Dr Reilly that there was no objective clinical or radiological reason to explain that, by reference to his back injury, the evidence seems to suggest four possible explanations for that:
(a)first, that the plaintiff is and was being deliberately dishonest;
(b)second, that his complaints were not deliberately dishonest, but operating at a subconscious level, although without any operative mental disorder by that stage (supported by Dr McPhee’s analysis of abnormal illness behaviour);
(c)third, that he had developed a pain disorder (Mr Whittingham); or
(d)fourth, that his adjustment disorder was continuing (Dr Low).
As I have already said, I do not accept Dr Low’s evidence, where it is inconsistent with that of Dr Rice and Mr Whittingham, as to the persistence of adjustment disorder.
As to pain disorder, that is Mr Whittingham’s view, but Dr Rice disagrees.[283] Even if that was the appropriate diagnosis, as mentioned above, it is not pleaded by the plaintiff in his statement of claim, and was expressly disavowed by his counsel at the trial.
[283] Exhibit 1, tab 22, p 4.
On balance, it seems to me that the more probable explanation for the plaintiff’s behaviour in late August / early September 2012 is either the first or the second above. I am reluctant to expressly find that he is and was being deliberately dishonest; but in any event, my careful analysis of the evidence leads me to the view that I am unable to accept much of the plaintiff’s evidence. I find that by September 2012 the plaintiff no longer suffered from a mental disorder which was causally related to the workplace injury he sustained on 3 January 2012.
The plaintiff has not discharged the onus of proving, on the balance of probabilities, that his inability / refusal to drive a forklift in September 2012 is due to any of the injuries, as pleaded, and on the basis of the findings I have made about them, which were caused by his workplace accident on 3 January 2012.
I turn now to the assessment of damages, having regard to the findings I have made.

Assessment of Damages

General damages

Sections 306O and 306P of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (Act)[284] govern the calculation of general damages. In the first instance, that involves assessing the appropriate “injury scale value” (ISV) under the rules provided under the Regulation.[285]
[284]The parties were in agreement that it is repealed reprint 6 of the Workers’ Compensation and Rehabilitation Act 2003 which applies.
[285]The parties were in agreement that it is repealed reprint 4A of the Workers’ Compensation and Rehabilitation Regulation 2003 which applies.
The rules for assessing ISV’s are set out, relevantly for present purposes, in s 112D and schedules 8 and 9 of the CLR. Schedule 8 sets out a number of matters the court is to have regard to in the application of schedule 9 (which sets out the range of ISVs for various injuries).
As explained in s 2 of schedule 8, in assessing the ISV for an injury, it is necessary to consider the range of injury scale values stated in schedule 9 for the particular injury concerned, noting that the range of ISVs reflects the level of adverse impact of the injury on the injured worker.
Relevantly, ss 3 and 4 of schedule 8 deals with the approach to assessing the ISV for multiple injuries. As McMeekin J explained in Allwood v Wilson [2011] QSC 180 at [20] and [21], in relation to the equivalent provisions in the Civil Liability Regulations 2003:
“This case concerns multiple injuries. In such a case it is necessary to determine the dominant injury as it is defined, have regard to the range of ISVs applicable to that injury, determine where in the range of ISVs provided for that injury it should fall, and determine whether the maximum ISV in that range (“the maximum dominant ISV”) adequately reflects the adverse impact of all the injuries. If the maximum dominant ISV is not sufficient then the ISV may be higher but not more than 100 and only rarely more than 25% above the maximum dominant ISV selected. In arriving at an appropriate ISV the court needs to bear in mind that the effects of multiple injuries commonly overlap.
Whilst the regulations indicate that the purpose of the elaborate scheme set out there is to promote consistency in awards, sight must not be lost of the overriding purpose of the ISVs prescribed — to reflect the level of adverse impact of the injury on the injured person.” [286]
[286]See also Ballesteros v Chidlow [2005] QSC 280 at [57]-[66] and [83]-[85] (White J) (her Honour’s approach to determining the dominant injury was not the subject of the appeal in Ballesteros v Chidlow [2006] QCA 323).
As defined in schedule 13 of the Regulation, “dominant injury” means either the injury of the multiple injuries having the highest range, or if the highest range for 2 or more injuries is the same, the injury selected as the dominant injury by the court. The “highest range” means the range of ISVs having the highest maximum ISV.
Section 8(2) of schedule 8 provides that in assessing an ISV, the court must have regard to the provisions set out in schedule 9 (such as examples of injury, examples of factors affecting ISV assessment and comments about appropriate level of ISV), to the extent they are relevant in a particular case. But s 9 provides that the court may have regard to other relevant matters, including the range for, and other provisions of schedule 9 in relation to an injury other than the dominant injury.
Under s 10 of schedule 8, the extent of whole person impairment is an important consideration, but not the only consideration affecting the assessment of an ISV. Sections 11 and 12 contain provisions dealing with the requirements of medical reports stating whole person impairment percentages, and the greater weight to be given to such an assessment provided under AMA5, than to one not based on that criteria.
In so far as the back injury is concerned, the plaintiff contended that item 92 (moderate lumbar spine injury – soft tissue injury) was appropriate. The defendant contended that item 93 (minor lumbar spine injury) was appropriate. Having regard to the finding I have made above, as well as to the comment in relation to item 92 in schedule 9, that “[t]he injury will cause moderate permanent impairment, for which there is objective evidence, of the … lumbar spine”, and there being no objective evidence of that in the plaintiff’s case, in my view item 93 is the appropriate one. I am confirmed in that view by the examples given for item 93, which are consistent with the plaintiff’s situation here. The ISV range for item 93 is 0 to 4.
In so far as the ankle injury is concerned, the plaintiff contended the relevant categorisation under schedule 9 was item 143 (minor ankle injury), which has an ISV range of 0 to 5. I agree that is appropriate.

In so far as the “psychiatric injury” is concerned, the plaintiff contended that item 12 (moderate mental disorder) was appropriate. An example of the injury for item 12 is a mental disorder with a PIRS rating between 4% and 10%. The plaintiff relies upon Dr Mathew’s PIRS rating of 5% in making this submission. However, as I have said, I consider that the reliability of this is undermined by the actual evidence of the plaintiff’s ability to work in proximity to forklifts. On the basis of my findings above, I am not satisfied the plaintiff’s mental disorder as a result of the workplace accident falls within item 12, but would consider that it falls within item 13 (minor mental disorder), which has an ISV range of 0 to 1.
On that analysis, and having regard to the definition of “dominant injury” in schedule 13, the “dominant injury” is the ankle injury (because it has the highest range of ISV, having 5 as its maximum).
Given that I would notionally have assigned an ISV of 4 for the lumbar spine injury on its own, to reflect the level of adverse impact of all 3 injuries on the plaintiff, I propose to assess the plaintiff as having an ISV of 5 (that is the maximum dominant ISV), raised by 20% to 6 (see s 3(2) and 4 of schedule 8 of the Regulation).
Having regard to s 112E and schedule 12 (item 2) of the Regulations, the amount of general damages to be awarded is $7,500.00.

Special damages - past

In terms of the claim for past special damages, the amount of the refund due to the defendant is agreed, in the sum of $51,378.65.[287]
[287] Exhibit 16.
The claimed refund to Medicare was controversial, because of the defendant’s contention that the expenses incurred as a result of Dr Salinas referring the plaintiff to a number of specialists after November 2013 are not causally related to the workplace accident on 3 January 2012. I have found that to be the case. Accordingly, those expenses are not recoverable as damages against the defendant.
The defendant submitted that the Medicare refund should be limited to the amount of $390.75 claimed in the 5 March 2014 statement of loss and damage.[288] Having regard to the actual Medicare “notice of past benefits” document[289] that seems to be correct.[290]
[288]Which incidentally is also the amount claimed in the further amended statement of claim which was filed by leave on 30 March 2015 [10(b)(i)]; although it is clear from the statement of loss and damage dated 26 March 2015 that the amount claimed is $6,061.40.
[289] Exhibit 1, tab 29. Also, exhibit 12.
[290]The amounts included in that document for Dr Reilly and Dr Sidhom add up to $391.65; there is an amount claimed for services provided by a Dr Duggirala on 2 July 2012 (which exhibit 1, tab 26 shows is not related to the workplace injury) and the other entries are related to Dr Salinas and the various referrals that she made.
Out of pocket treatment expenses of $505.50 are claimed. These relate to amounts the plaintiff is said to have paid to Dr Reilly, Dr Hayes, Dr Meyer and Dr Bradfield.[291] I am prepared to include the amounts paid to Dr Reilly on 4 September and 19 December 2013 (which comes to $111.90) (on the basis that she was his treating orthopaedic surgeon at an earlier time and it may be said to be reasonable for Dr Salinas, initially at least, to have referred the plaintiff back to her), but consistent with my finding above, the amounts paid to Dr Hayes, Dr Meyer and Dr Bradfield are not recoverable.
[291] [161] of the plaintiff’s submissions.
Out of pocket pharmaceutical expenses of $491.06 are claimed.[292] The amount claimed in March 2014 was $265.34. It appears from exhibit 4 that it is not simply that expenses incurred since March 2014 have been added, but additional expenses incurred pre March 2014 as well. Reflecting my findings above, I propose to include the sum of $448.96 for past pharmaceutical expenses (having removed expenses post March 2014).
[292] Exhibit 4 and [163] of the plaintiff’s submissions.
Travel expenses of $1,743.90 are claimed.[293] The defendant notes that no evidence was lead about travel expenses. That is correct, but I can infer that the plaintiff had to travel to the doctors that I have heard evidence about and from, and which I accept were for the purposes of his work-related injury. The plaintiff submits an amount of $0.75 per kilometre is appropriate, and refers to the decision of Daubney J in Land v Dhaliwal [2012] QSC 360. In the absence of any submission to the contrary by the defendant, I will adopt that amount. However, when I look at the schedule of travel expenses which forms part of the statement of loss and damage prepared in April 2015,[294] there are a number of amounts that I consider should be removed either because they relate to attendances on doctors I have found not to be for matters causally related to the work place injury (such as Dr Hayes, Dr Salinas and Dr Meyer), or to attendances on doctors / health practitioners I heard no evidence about.
[293] [164] and [165] of the plaintiff’s submissions.
[294] Exhibit 11, p 12.
One of the practitioners referred to is a Mrs M Abella, who I understand is the same person as Ms Madonna Steinhort, a psychologist. It seems the plaintiff was referred by Dr Salenis to Ms Steinhort in late 2013. The plaintiff said he “was seeing Ms Steinhort just to work through the rest of the anxiety I had left and to help me work through everything that’s going on with all of the past two years”. When asked what he meant by all of the past two years, he said “I mean, like, just the – the claim and, yeah”.[295]
[295] T 1-68.19-.30.
Dr Salenis’ notes of 23 April 2014 refer to the plaintiff doing “some jobs for Madonna for workshop”.[296] This is Madonna Steinhort, the psychologist. The plaintiff said he was attending a workshop she was conducting at Bribie Island (one day a week, for 6 weeks), and also helping her with some administrative tasks while he was there (processing attendants’ Medicare cards and photocopying).[297]
[296] Exhibit 1, tab 16.
[297] T 2-50 – T 2-51.
There was no evidence given by Dr Salenis at the trial about why she referred the plaintiff to Ms Steinhort.[298] Dr Salenis’ notes refer to receiving a report from Ms Steinhort’s Bribie Island practice on 11 January 2014, but it was not in evidence (and seems not to have been disclosed).[299]
[298]Although there is a note in Dr Salenis’ records, on 11 November 2013, “for referral to Psych re PTSD”, which may correspond with the time that the plaintiff first saw Ms Steinhort.
[299] T 3-46.
Given the amount of medical evidence that was tendered in this trial, and the number of doctors who also have given evidence, I am not prepared to draw inferences about what the purpose of other visits to other health practitioners was about, in the absence of evidence. This applies to Ms Steinhort as well.
The amount allowed for travel expenses will therefore be $117.15.[300]
[300]Calculated on the basis of the amounts in the schedule at p 12 of exhibit 11, for trips to Dr Sidhom, Rothwell Physiotherapy, Dr Duggirala (who is in the same practice as Dr Sidhom) and Dr Reilly.
Interest will be allowed on the out of pocket amount of these expenses ($678.01), at the rate of 3.25%, for 3.5 years,[301] which comes to $77.12.
[301] January 2012 to June 2015.

Past economic loss

The medical evidence, which I accept, is to the effect that:
(a)the plaintiff’s back injury would not impact on his ability to work, including as a forklift driver: Dr McPhee, Dr Ballenden and Dr Reilly (noting the comments above about her 18 September 2012 comment regarding inability to drive forklifts); and
(b)the plaintiff’s ankle injury would not impact on his ability to work, including as a forklift driver: Dr Saxby.
In so far as the plaintiff’s mental disorder is concerned, on the basis of my finding above, that consistent with Dr Rice and Mr Wittingham’s evidence, the plaintiff’s adjustment disorder, which can be said to have been caused by the workplace injury, was resolved by July 2012, there is no basis to find that his negligence-caused mental disorder impeded his ability to work, including as a forklift driver, after September 2012.
Even Dr Mathew’s evidence was that although the plaintiff could not work in an environment where he is a pedestrian in proximity to forklifts, he is otherwise fit for full time work from a psychiatric perspective. As discussed, the former opinion is undermined by the fact that the plaintiff was able to work in proximity to forklifts as at September 2012.
The only evidence that the plaintiff’s back injury had, or will have, an impact on the plaintiff’s ability to work, including as a forklift driver, is the plaintiff’s own evidence. For the reasons which I have outlined in detail above, I am not prepared to accept the plaintiff’s evidence in that regard, particularly where it is inconsistent with the large body of medical evidence before me.
On the question whether the plaintiff is suffering pain, which prevents him from driving a forklift, counsel for the plaintiff submitted that “there is not one medical opinion that questions [the plaintiff] suffering back pain or, specifically, that he suffered from severe back pain when he tried to drive a forklift”. In that regard, counsel referred to Koven v Hail Creek Coal Pty Ltd [2011] QSC 051 (McMeekin J), in particular at [34] where McMeekin J said:
“There is a qualification that needs to be recognised with orthopaedic opinions of the type relied on by a defendant. The men proffering the opinions are themselves not truck drivers or bus drivers. The day to day reality that the work entails may not be quite as they envisage. And where it is acknowledged that pain is the restriction and that pain can be triggered by a variety of movements or forces that might impact on the joint, or indeed simply changes in the weather, or for no discernible reason, I would need cogent evidence to persuade me that a doctor has the greater capacity to judge what a man can do in such employment than the man himself – where the person in question is accepted as an honest reporter, which I certainly do here.”[302]
[302] Emphasis added.
There are two obvious distinguishing features between this case, and the Koven case:
(a)first, as indicated in the last sentence of [34], it was said of Mr Koven that “[t]here was no suggestion that the plaintiff overplayed his injuries and [his Honour’s] impression generally was that he was quite stoical”. Justice McMeekin later said “Mr Koven seemed patently honest” (at [83]). In contrast, here, in my view there is undoubtedly overstatement of the plaintiff’s symptoms by him, and whether that is conscious or subconscious, it is inconsistent with the objective evidence.
(b)second, in Koven, the expert evidence, of two orthopaedic surgeons, accepted that ongoing pain, which was explicable on the basis of the objective medical evidence, would cause Mr Coven some restrictions in his future employability (see at [11]-[15]). In that context, the issue being dealt with by McMeekin J at [34] was whether to accept the orthopaedic surgeon’s evidence that, although Mr Koven could not return to the heavier manual work he had been doing in the mines, he could work full time in other jobs, including as a tilt truck driver, or Mr Koven’s evidence that he could not work full time in that job. In contrast, here, the medical practitioners whose evidence I have accepted ssay the continuing, subjective, pain reported by the plaintiff is not explicable on the objective medical evidence; and none of them express the opinion that the plaintiff should have any restrictions.
So although it is true to say that the medical practitioners cannot categorically say the plaintiff does not suffer pain, that is because they all accept that pain is a subjective thing.
Counsel for the plaintiff further argued that there was a breach of the rule in Browne v Dunn in that it was not expressly put to the plaintiff that he was lying about experiencing an aggravation in his back condition and the onset of severe pain after being on the forklift for 2 or 3 minutes, and that his evidence must therefore be accepted about that.
I do not accept that submission.
In Thomas v Van den Yssel (1976) 14 SASR 205 at 207 Bray CJ said, after referring to the general principles from Browne v Dunn:
“But these principles cannot, in my view, be applied without qualification to a challenge to the witness’s credit generally, particularly the credit of a plaintiff in an action for damages for personal injuries in relation to his evidence about his symptoms and incapacities. Damages are always in issue. Such a plaintiff knows that the defendant will contend that his injuries do not deserve the sum which he himself has placed on them. And in many other cases the witness must know that the other side will contend that he is not telling the truth, and even in some cases that he is deliberately not telling the truth. I cannot assent to the proposition that counsel cannot argue or the court find that a witness is deliberately giving false evidence unless the witness is asked some such question as, ‘I put it to you that your evidence is false’, or ‘I suggest that that is a deliberate lie’ or the like. Indeed a successful objection might be taken to such questions as needlessly offensive…”[303]
[303]Referred to with approval by McMurdo P in Martin v Rowling [2005] QCA 128 at [11]; see also Burke v Corruption and Crime Commission (2012) 289 ALR 150 at [186].
As McClure JA said in Lazarevic v Western Australia [2007] WASCA 156 at [20], it is unnecessary to put such questions because it permits of only one response, a bare denial.
In any event, the defendant’s case was made plain, on the pleadings, and in medical reports exchanged well before trial, as well as by the extensive cross-examination of the plaintiff. There can be no question that the plaintiff had fair notice of the case against him.[304]
[304] Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1 at 16.
I am not satisfied, on the evidence, that the plaintiff’s failure to work, since September 2012, is causally related to the injury he suffered at work on 3 January 2012. By the time his employment was terminated in September 2012, he was able to work full hours, albeit not driving a forklift. So even apart from anything else, I do not accept the submission that he has suffered a loss, to the date of judgment, of the whole of his income.
But more to the point, I am not satisfied that he could not have continued to do the work he was previously doing, that is, driving a forklift.

Future economic loss

It follows from my finding above, that I am not satisfied that the plaintiff’s future earning capacity has in fact been diminished by reason of the workplace injuries he sustained on 3 January 2012.[305]
[305]See Allianz Australia Insurance Limited v McCarthy [2012] QCA 312 at [48] and [51] per White JA (although her Honour was in the minority as to the result in that case, the general principles summarised by her Honour were not called into question by the majority’s reasoning); Medlin v State Government Insurance Commission (1995) 182 CLR 1 at 3.
Accordingly, I do not allow any amount for future economic loss.

Future special damages

It further follows from the findings I have made above, that no amount can be awarded for future special damages.

Summary of damages to be awarded

In summary, for the reasons set out above, damages are assessed as follows:

General Damages $ 7,500.00

Past special damages:

·    Refund to Toll $51,378.65

·    Refund to Medicare $     390.75

·    Out of pocket treatment expenses $    111.90

·    Out of pocket pharmaceutical expenses $    448.96

·    Travel expenses $    117.15

Interest on the out of pocket expenses[306] $     77.12

Total $60,024.53
[306]         $678.01 x 3.25% x 3.5 yrs.

There will be judgment for the plaintiff in an amount consistent with my reasons above (and reflecting an amount net of the refund to the defendant). However, to enable the parties to consider the calculations above, I will direct that the parties file a form of order within 7 days. Likewise, I will hear the parties as to costs, and to that end propose to direct that any submissions in respect of costs, or alternatively a proposed consent order if the parties are agreed, be filed within 7 days.

CITATION:	Stark v Toll North Pty Ltd [2015] QDC 156
PARTIES:	NICHOLAS WAYNE STARK (Plaintiff) And TOLL NORTH PTY LTD (ACN 009 683 452) (Defendant)
FILE NO/S:	3556/13
PROCEEDING:	Claim
DELIVERED ON:	19 June 2015
DELIVERED AT:	Maroochydore
HEARING DATE:	30 March - 02 April 2015; 21 April 2015
JUDGE:	Bowskill QC DCJ
ORDER:	1. Judgment for the plaintiff against the defendant in an amount consistent with these reasons. The parties to file a proposed form of order within 7 days. 2. Any submissions in respect of costs, or alternatively a proposed consent order if the parties are agreed, to also be filed within 7 days.
CATCHWORDS:	DAMAGES – Personal Injuries – Quantum – Liability admitted - Dispute as to nature, extent and consequences of injuries caused by workplace forklift accident. Workers’ Compensation and Rehabilitation Act 2003 (Qld) Workers’ Compensation and Rehabilitation Regulation 2003 (Qld) Allwood v Wilson [2011] QSC 180 Camden v McKenzie [2008] 1 Qd R 39 Fox v Percy (2003) 214 CLR 118 Onassis & Calegopoulos v Vergottis [1968] 2 Lloyd’s Rep 403 Repatriation Commission v Bawden (2012) 206 FCR 296 State of New South Wales v Hunt 92014) 86 NSWLR 226 Thomas v Van den Yssel (1976) 14 SASR 205
COUNSEL:	J Morris for the Plaintiff D Kelly for the Defendant
SOLICITORS:	Murphy Schmidt Solicitors for the Plaintiff Rodgers, Barnes and Green for the Defendant

Head of damage	Plaintiff	Defendant
General damages	$ 13,300.00[16]	$ 6,050.00[17]
Past special damages, comprising:
· Refund to Toll Group	$ 51,378.65	$51,378.65[18]
· Refund to Medicare	$ 6,061.40[19]	$ 390.75[20]
· Out of pocket treatment expenses	$ 505.50[21]	?
· Out of pocket pharmaceutical expenses	$ 491.06[22]	?[23]
· Travel expenses	$ 1,743.90[24]	Nil[25]
Interest on the out of pocket component of the past special damages	$ 124.31	Agreed on rate of 3.25%[26]
Past economic loss	$160,658.12[27]	Nil[28]
Interest on part of past economic loss	$ 11,425.39[29]	Nil
Past superannuation	$ 14,459.23[30]	Nil
Interest on past superannuation	$ 1,517.85[31]	Nil
Future economic loss	$400,064.45[32]	Nil (alternatively $20,000.00[33])
Future superannuation	$ 44,007.08[34]	(if an award of $20,000 is made) $ 2,200.00[35]
Future special damages	$ 11,842.10[36]	Nil
Total	$717,579.04	$57,819.40

General Damages	$ 7,500.00
Past special damages:
· Refund to Toll	$51,378.65
· Refund to Medicare	$ 390.75
· Out of pocket treatment expenses	$ 111.90
· Out of pocket pharmaceutical expenses	$ 448.96
· Travel expenses	$ 117.15
Interest on the out of pocket expenses[306]	$ 77.12
Total	$60,024.53