Taleb v Victorian WorkCover Authority
[2025] VCC 1130
•12 August 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-24-07126
| EZZAT TALEB | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE SANGER | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22 and 23 July 2025 | |
DATE OF JUDGMENT: | 12 August 2025 | |
CASE MAY BE CITED AS: | Taleb v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 1130 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to lower back and mental injury – paragraph (a) and (c) – loss of earning capacity and pain and suffering – plaintiff under the age of twenty-six at time of injury – credibility and reliability
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013 (Vic), s325(2), s335
Cases Cited:Humphries and Anor v Poljak [1992] 2 VR 129.
Judgment: Application granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr G Coldwell with Mr A Macaskill | Gordon Legal |
| For the Defendant | Ms S Manova | Hall & Wilcox |
HER HONOUR:
Introduction
1Mr Taleb is a twenty-eight-year-old man. He was twenty-four years old at the time of his injury. He completed Year 12 at Emmanuel College in Altona North before heading to university and obtaining a Bachelor of Construction Management, graduating in 2019. His ambition was to work full time in the building and construction injury.
2He had previously worked as a security guard and traffic controller, and was a director of his own tiling company.
3During the COVID-19 pandemic, he obtained a position as a resident support officer in November 2020 within the Hotel Quarantine Program, initially employed by the Department of Justice and Community Safety and subsequently by COVID-19 Quarantine Victoria (“the employer”). His duties included escorting residents within various COVID-19 mandatory quarantine sites across Victoria. He was initially employed on a one-year fixed-term contract. His contract was extended in August 2021 until 30 June 2022. At the date of his injury he was earning approximately $2,850 gross per week plus superannuation.
4He sustained his injury while working night shift on 21 and 22 October 2021. He was working for the employer at the Intercontinental Hotel in Collins Street, Melbourne. Three buses of overseas travellers were due to arrive at the hotel to be quarantined. The manual handling of luggage was normally performed by a specialised team, however they had all finished up for the evening. He was told by his team leader to unload and transfer the luggage. He was not provided with any assistance, nor had he been provided with any manual-handling training. After two to three hours of unloading and transferring the luggage by himself, he felt the onset of severe lower back pain. He was given pain relief medication by one of his co-workers, but his pain continued to worsen and he was eventually sent home at about 4.20am.
5Mr Taleb made his application pursuant to s335 of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) for a determination that his loss of earning capacity and pain and suffering consequences arising from his lower back injury are “at least very considerable” and “more than significant or marked”,[1] or that he had a permanent and severe mental or behavioural disturbance or disorder, or both.
[1]Humphries and Anor v Poljak [1992] 2 VR 129 at 140
6There was no issue taken at the hearing regarding the compensability of Mr Taleb’s lower back injury and mental health injury.
7Rather, Counsel for the defendant identified the following as the relevant issues in the case:
(a) the credibility and reliability of Mr Taleb’s evidence;
(b) whether the consequences of the injury meet the relevant test for serious injury; and
(c) whether Mr Taleb established that he has a 40 per cent or more loss of earning capacity.
8Counsel for the defendant relied upon the following in support of its submissions:
(a) regarding Mr Taleb’s credibility and reliability:
(i)while Mr Taleb exhibited some pain behaviour while giving evidence, he was able to follow cross-examination without signs of cognitive impairment, such as confusion, memory loss or loss of concentration;
(ii)his back pain did not appear to interfere with his ability to give oral evidence at the hearing;
(iii)he was vague about whether he took money from his tiling company’s bank accounts while running the business;
(iv)there was no affidavit from Mr Taleb’s father to corroborate his account of the work he was doing and the remuneration he received in the tiling business;
(v)he had not adequately explained how he came to afford and retain two investment properties in Hoppers Crossing, the first at Maple Crescent and the second at Kennedia Close, notwithstanding the absence of any declared income for the last twelve months;
(vi)issues relating to the accuracy of the forms he completed to secure the investment loans in August and December 2021 from the bank;
(vii)inconsistency in details of when he separated from his partner;
(viii)the arrangements concerning the purchase of his second investment property at Kennedia Close;
(ix)the lack of explanation about how he maintained both investment properties in his affidavit evidence, compared to his oral evidence;
(x)the lack of valid explanation about why his father had transferred his home into Mr Taleb’s name and why he obtained a mortgage to finance that purchase in December of 2021; and
(xi)inconsistencies between the histories recorded by the various doctors whose reports were relied on in this case regarding Mr Taleb’s living arrangements and Mr Taleb’s evidence;
(b) in relation to the physical injury claimed under paragraph (a), Mr Taleb did not have an obvious objective spinal injury based on the opinions provided by Mr Patrick Lo, Dr Navid Hamedani, Dr Roozbeh Malekzadeh, Mr Hamish Munro, Mr Gary Speck, Associate Professor Evange Romas and Dr Barry Slon. There was compelling evidence that Mr Taleb likely suffered a soft-tissue injury, but no frank vertebral structural injury to the spine. He had now developed a non-organic pain syndrome or disorder for which surgery was unlikely;
(c) regarding Mr Taleb’s loss of earning capacity:
(i)Mr Taleb’s pre-injury employment and duties no longer exist;
(ii)there was no evidence about the type of construction management role Mr Taleb intended to pursue and what he would have done had COVID-19 not happened; and
(iii)the medical evidence of his treating physiotherapist, Mr Hamish Munro, as well as Mr Slon and Dr Umberto Boffa, should be relied on to find that Mr Taleb’s work capacity could improve with further treatment, or that he had a capacity for full-time, suitable duties, returning on a graduated basis. Dr Boffa’s opinion should be preferred to that of Dr Joseph Slesenger, as Dr Slesenger was unaware of Mr Taleb’s experience in running his own tiling business and he did not provide an explanation about why Mr Taleb was unable to perform the various roles put to him on a consistent and reliable basis;
(d) Mr Taleb did not meet the test for serious injury with respect to his paragraph (c), or mental injury, case because:
(i)some of the medical evidence from both Mr Taleb’s treating practitioners and medico-legal practitioners supported improvement in Mr Taleb’s symptoms with further treatment, in particular the opinion of Dr Akisola Akinbiyi, the first opinion of Mr Charles Ruddock and the opinion of Dr Nicholas Ingram; and
(ii)the opinion of Professor Peter Doherty should be preferred to that of Dr Ingram. Professor Doherty found Mr Taleb had an adjustment disorder but no diagnosable psychiatric condition, and that from a psychiatric point of view he was fit for at least half full-time hours, and likely on a full-time basis.
9Thus the issues for determination in this case were:
(a) was Mr Taleb a credible and reliable witness?
(b) did Mr Taleb sustain a permanent impairment as a result of his compensable lower back injury?
(c) if yes, what are the consequences of that permanent impairment to the lower back, and do those consequences include a permanent loss of earning capacity of 40 per cent or more?
(d) did Mr Taleb suffer a permanent mental or behavioural disturbance or disorder arising from his mental injury?
(e) if yes, are the consequences severe, including whether he has a permanent loss of earning capacity of 40 per cent or more arising from his mental disturbance or disorder?
10The legal principles to be applied were not in dispute in this case.
11Mr Taleb gave oral evidence and swore two affidavits that were tendered in this case. The parties otherwise tendered various medical reports and other material from their respective court books.
12I have considered the evidence and submissions relied on at the hearing. While I do not propose to refer to all of the evidence, I shall refer to it to the extent necessary to explain my reasons.
13For the reasons set out below, I find that Mr Taleb is entitled to leave to proceed with a claim for damages for his loss of earning capacity and pain and suffering arising from his injury to his lower back and mental injury.
The plaintiff’s evidence
14Mr Taleb affirmed two affidavits in support of his application, dated 9 July 2024 (“the first affidavit”) and 15 July 2025 (“the second affidavit”).
The plaintiff’s first affidavit affirmed 9 July 2024
15I have outlined some of Mr Taleb’s relevant background in my introduction above, as contained in his first affidavit. I will not repeat that background here.
16Prior to his injury he considered himself a normal, healthy twenty-four-year-old male. He was living with his partner, Sabah, and their newborn son. He had a wide group of friends and enjoyed going out socially, camping, fishing and overseas travel.[2]
[2]Exhibit P1, Plaintiff’s Amended Court Book (“PCB”) 21 at paragraph [4]
17Following his injury, he attended the SIA Medical Centre in Footscray before attending his normal general practitioner (“GP”), Dr Malekzadeh, on 26 October 2021. He was prescribed Panadeine Forte and referred to a physiotherapist, Mr Matthew Brewer; and then a chiropractor, Mr Chris Munro. He was sent for an MRI scan of his lower back that was performed on 5 November 2021. He was referred to Mr Lo, who he attended on 29 November 2021. Mr Lo recommended pain management and referred him to Dr Navid Hamedani at Advance Healthcare.[3]
[3]Exhibit P1, PCB 22 at paragraph [6]
18He commenced a multidisciplinary pain program at Advance Healthcare after being assessed in January 2022. He continued to have chiropractic treatment and acupuncture, and was taking Panadeine Forte, Palexia, Voltaren, Nurofen and Panadol.[4]
[4]Exhibit P1, PCB 22 at paragraph [7]
19He was unable to return to any work with the employer due to his injury. He became very despondent. His sleep and mood were getting worse and worse. He was referred to a psychiatrist for anxiety and depression.[5]
[5]Exhibit P1, PCB 23 at paragraph [8]
20In July 2022, he underwent bilateral sacroiliac joint injections which did not improve his symptoms. Dr Hamedani then recommended an ablation procedure which he elected not to proceed with as he was not guaranteed success. He continued with physiotherapy and hydrotherapy.[6]
[6]Ibid
21He gained weight due to an inability to exercise. Bariatric surgery was recommended by Mr Mani Niazi. He suffered from gastric upset and constipation due to his use of medications. He was referred to a urologist, Associate Professor Homi Zagar, relating to pain in his left groin, testicle and both hips. He was referred to a psychiatrist, Dr Akinbiyi, who he initially saw on 27 February 2023.[7]
[7]Exhibit P1, PCB 23 at paragraph [9]
22At the time of swearing his first affidavit, he was seeing Dr Malekzadeh once a month, who prescribed medication and provided him with WorkCover certificates. He was taking Palexia, Norgesic and Celebrex for pain. He was also taking fluoxetine for depression and temazepam for sleep. Dr Hamedani performed bilateral sacroiliac joint injections on 23 February 2024. He was seeing Ms Cosette Cuschieri, physiotherapist, twice a week, was attending a gym and participating with hydrotherapy. He was seeing Dr Akinbiyi every three to four weeks and Mr Aiden Barry, psychologist, every two to four weeks until he left his practice. He obtained a second opinion from Mr Nair, neurosurgeon, in November 2023.[8]
[8]Exhibit P1, PCB 23-24 at paragraph [10]
23He believed that his injury had destroyed his earning capacity. He had not worked since 22 October 2021 and believed he was unfit for all work at the time of swearing the affidavit. He deposed that physically he could not perform work that involved long periods of standing, walking or sitting and that he would not be able to handle work that required bending, twisting or heavy lifting. He would also struggle with work requiring concentration or dealing with stressful situations.[9]
[9]Exhibit P1, PCB 24 at paragraph [11]
24He had constant severe lower back and groin pain that went down his legs, especially his left leg. His back often spasmed. His pain was aggravated by sudden movement. He often had flare-ups after trying to do things, however could have a flare-up when doing very little. He relied on strong painkilling medication. He often needed to lie down and rest with either his feet up or pillows between his knees.[10]
[10]Exhibit P1, PCB 24 at paragraph [13]
25His ability to get a good night’s sleep was prevented by pain. He was uncomfortable in bed. He needed to lie on his side with pillows between his legs when sleeping. He tried to take naps during the day to catch up from poor sleep from the night before. He continued to be restricted with physical activities, including bending, twisting, lifting, carrying, driving, standing and walking. His injury had badly affected his family and social life. He rarely went out and had not been camping or fishing since his injury.[11]
[11]Exhibit P1, PCB 24-25 at paragraph [14]
26He had gastric upset and constipation. He took pantoprazole for stomach upset, which he was told had been caused by his other medications. He was now very depressed. He was addicted to smoking and vaping. His mental state had hit rock bottom. He had difficulty with concentration and memory. He often cried for no reason. He felt useless and worthless. He no longer enjoyed the things that he used to do. He worried about everything and became tired easily. He was anxious and irritable.[12]
[12]Exhibit P1, PCB 25 at paragraph [15]
27He believed that his injury caused the end of his relationship with his partner, Sabah. She wanted a partner who was physically and mentally capable. He could not perform sexually because of his pain and low self-esteem. He had become moody and dependant. He found it difficult to play with his son because of his injury. He was very careful and tentative when he engaged with him. His family helped him when he looked after his son.[13]
[13]Exhibit P1, PCB 25 at paragraph [16]
The plaintiff’s second affidavit affirmed 15 July 2025
28Mr Taleb provided an update to his condition in his affidavit affirmed 15 July 2025.
29He confirmed that he continued to live with his mother and sister in Altona North, that his brother sometimes stayed with them and that he sometimes stayed with his father, who lived at Kennedia Close, Hoppers Crossing.[14]
[14]Exhibit P1, PCB 27 at paragraph [2]
30He had not worked since the date of his prior affidavit.[15]
[15]Exhibit P1, PCB 27 at paragraph [3]
31He had had further injections into his lower back since his prior affidavit in mid-July 2024 and November 2024. The injections gave him some relief, but did not take the pain away. The relief lasted for a few months before wearing off. He worried about the side effects on his body of continuing to have injections. He last saw Dr Hamedani in about January 2025.[16]
[16]Exhibit P1, PCB 27 at paragraph [4]
32He did not wish to go down the path of surgery because he was worried about the risks.[17]
[17]Exhibit P1, PCB 28 at paragraph [5]
33He continued to consult his GP, Dr Malekzadeh, and his psychiatrist, Dr Akinbiyi. He had also seen a psychologist, Mr Ruddock, through Advanced Healthcare. He continues to attend physiotherapy and myotherapy. He attends a podiatrist who assists with footcare. He goes to hydrotherapy, does home exercises given to him by a physiotherapist and some exercises at the gym.[18]
[18]Exhibit P1, PCB 28 at paragraph [6]
34He continues to take painkilling medication for his lower back pain. He generally uses slow-release Palexia tablets twice per day. He has some instant-release Palexia, which he uses on worse days. He additionally uses Norgesic and Celebrex during flare-ups of severe pain. He had also used cannabis to help manage the pain. He used Zoloft (sertraline) for anxiety and depression, and temazepam for sleep.[19]
[19]Exhibit P1, PCB 28 at paragraph [7]
35His situation remained much the same as he described in his previous affidavit. He said:
(a) he believes he is unable to work. He would like to work but did not know what he could do now with his restrictions;[20]
[20]Exhibit P1, PCB 28 at paragraph [8a]
(b) he has had no income since his WorkCover weekly payments stopped in July 2024. He is now in financial difficulty. The rent from his investment properties does not cover the full amount of the mortgage repayments. His brother helped him financially cover the repayments. The Kennedia Close property was transferred into his name because his parents were going through a divorce. His father lives in that property now, and he is paying the mortgage repayments;[21]
(c) he continues to suffer pain in his lower back extending into his left leg, as well as back spasms and flare-ups. He avoids sitting, standing, walking for long periods, bending, twisting and heavy lifting;[22]
(d) he suffered a flare-up of pain after a minor car accident on 3 October 2022. The pain settled to his pre-car accident level after a week or so. He did not make a claim with the Transport Accident Commission relating to that accident;[23]
(e) he had some neck pain on and off which he believed was related to poor posture because of his back injury. His neck pain is not bad. He had been diagnosed with a hernia in his groin, however this had settled down;[24]
(f) he continues to suffer from disrupted sleep, partly because of his lower back pain and partly because of his anxiety, which keeps him awake at night;[25]
(g) he continues to be restricted with physical activities and recreational activities such as camping and fishing. He is still restricted with gardening and lawn mowing. He used to assist his family with these tasks before he was injured. He used to enjoy travelling, but has not been overseas since he suffered his injury. He avoids driving long distances due to increased pain;[26]
(h) his family life and social life continue to be impacted. He avoids social gatherings because he struggles to stand for long periods and he does not like talking about his injury when asked. When he goes out, he usually stays for a short period and then leaves early;[27]
(i) he continues to suffer from gastric symptoms and constipation. He no longer takes pantoprazole, but takes a laxative medication instead;[28]
(j) he continues to suffer from poor mental health, including depression, anxiety and other symptoms;[29] and
(k) he had been trying to reconcile with his former partner, Sabah, but the situation was difficult because of his physical injury and poor mental health. His son is now four years old. He would like to be more involved in his life. He did not feel like he had been able to be the father he should have been because of the injury. He struggles to match his son’s energy levels and feels like he is a burden to his son and his mother. This has been one of the most challenging aspects for him to deal with since he suffered his injury. His family helps him look after his son. He cannot lift and physically play with his son as he wants to, which has been very upsetting. His son loves soccer, but he struggles to kick a ball with him.[30]
[21]Exhibit P1, PCB 28 at paragraph [8b]
[22]Exhibit P1, PCB 28-29 at paragraph [8c]
[23]Exhibit P1, PCB 29 at paragraph [8d]
[24]Exhibit P1, PCB 29 at paragraph [8e]
[25]Exhibit P1, PCB 29 at paragraph [8f]
[26]Exhibit P1, PCB 29 at paragraph [8g]
[27]Exhibit P1, PCB 29 at paragraph [8h]
[28]Exhibit P1, PCB 29 at paragraph [8i]
[29]Exhibit P1, PCB 29 at paragraph [8j]
[30]Exhibit P1, PCB 30 at paragraph [8k]
Oral evidence
36Mr Taleb gave oral evidence at the hearing. His evidence was that:
(a) he lives with his mum and sister. His father had not lived at home since March 2022. He was not sure whether his parents had legally divorced, but they were separated. His brother moved out of the family home around the time his father returned from Lebanon in approximately April 2023. Mr Taleb had always lived in the family home;[31]
[31]Transcript (“T”) 16, Lines (“L”) 2-31
(b) his partner had lived in the family home with him until they broke up in August 2022.[32] The fact he was not contributing financially to his son in August 2022 contributed to the breakup with his partner.[33] His son was one year old at the time;
[32]T17, L25-26
[33]T54, L5-12
(c) he worked as a security guard at Zara on a casual basis while he was at university.[34] He also had a job as a traffic controller after he finished university. He started working as a traffic controller at the end of 2019;[35]
[34]T18, L17-18
[35]T18, L22-26
(d) in the year ending 30 June 2019, he declared income of $11,814 by way of director fees.[36] This was in relation to his tiling business, Teecon.[37] He was a director of the business and worked alongside his father;[38]
[36]T19, L2-5
[37]T19, L8-9
[38]T19, L21-23
(e) while Teecon did not do much work which required a contract, Mr Taleb would have had some involvement if there was a contract. His father did not draft up any contracts. His father did the hands-on work.[39] While the accountant prepared the tax returns, Mr Taleb did the bookkeeping that was provided to the accountant;[40]
[39]T20, L3-12
[40]T20, L17-19
(f) his father had access to the family bank account, so his father would pay himself what he needed;[41]
[41]T20 L28 ꟷ T21, L3
(g) there were one or two other tilers that worked for the business in addition to his father;[42]
[42]T23, L20-23
(h) he did not assist his father as a tiler or do any work as a tiler.[43] He had not done any work associated with the tiling business since his accident on 22 October 2021;[44]
[43]T25, L7-11
[44]T53, L16-17
(i) he did not recall taking any cash out of the tiling company account to pay himself;[45]
[45]T26, L2-3
(j) he purchased an investment property in August 2021 for $757,000, with a mortgage to the Commonwealth Bank for $679,900.[46] He was contributing to groceries and bills while living with his parents at that time.[47] About $40,000 to $45,000 of the $100,000 required to purchase the home had been earned by him. The remainder had been provided with help from his family;[48]
[46]T27, L9-31
[47]T28, L7-11
[48]T28, L12-20
(k) he did not recall whether he told the bank that the full-time position he held in August 2021 was set to end on 30 November 2021.[49] At the time, he made his second application for a bank loan for his second investment property he was on WorkCover benefits.[50] When he signed the loan documents with the bank he believed that his injury would not be long term and he would return back to work;[51]
[49]T32, L1-3
[50]T33, L16-18
[51]T53, L30-31
(l) since his WorkCover weekly payments ceased, he continued to meet his mortgage repayments on his first investment property through a combination of the rent received on that property and a loan he has received from his brother.[52] His brother did not have any financial interest in the investment property;[53]
(m) he did not recall telling Dr Hamedani in around 2023 or 2024 that one of the reasons he did not want to go ahead with the radiofrequency nerve ablation to his spine was that he was actively seeking employment and trying to manage his pain as conservatively as possible.[54] He was not actively looking for work in 2023 or 2024.[55] He has not actively sought suitable employment since he went off work with his back injury;[56]
(n) he lifts five kilogram free weights in his gym program.[57] Free weights are a short component of his whole program, but he is at the gym for a couple of hours because the pool and gym are in the same facility.[58] He can manage fifteen minutes on the treadmill before his exercises. There has been gradual improvement throughout his rehabilitation.[59] He could not provide a specific date regarding when the pain started to get better, but he had gradual improvement. Some days were better than others, and some days were not as good as others.[60] Things have not been a lot better than they were in 2021 and 2022;[61]
(o) he estimated that he could walk for half an hour before needing a rest. After that, he could walk for another half an hour, making the total he can walk in any one day an hour.[62] He could sit for an hour and stand for an hour.[63] However, it was not always like that. It differed.[64] He had days where he could not sit, walk or stand for as long as half an hour.[65] He takes rests and naps during the day. He naps pretty much every day because he does not get a good night’s sleep, so he is constantly tired.[66] Every day was different with respect to his restrictions;[67]
(p) he knew that he would not be able to manage sedentary work given his condition. Giving it a go would just make things worse. He assumed he would not ever have a job again, even on a part-time basis.[68] It was not just the sitting and standing, it was the mental capacity to deal with stressful things;[69]
(q) he has not sought suitable employment because of his physical and mental conditions. He would love to work if he was able to;[70]
(r) he could drive. He occasionally drove himself to appointments. He had been dropped off at the Court on the day of the hearing;[71]
(s) he had never really done housework.[72] His son’s mother had always been his son’s primary carer;[73]
(t) he ceased contributing to the cost of caring for his son when his income ceased.[74] Prior to that, the amount he contributed was not fixed. He would give his partner what he could afford, which he thought was about $400 or $500 a month.[75] There was a part of his son’s life where he lived with Mr Taleb.[76] He was paying $0 for his son when he filled out his credit application to the bank in August 2021. He did not mislead the bank. This was also the case in December 2021 when he filled out his second application;[77] and
(u) he is on Zoloft (sertraline) 200 milligrams for his psychiatric condition which he started in April of this year. It helped reduce his anxiety and depression.[78] He takes temazepam to help him sleep. He is not planning on having any further medical treatment other than medication. He has not considered getting a referral to a different specialist for another opinion.[79]
[52]T34, L5-22
[53]T36, L14
[54]T38, L26-31
[55]T39, L22-24
[56]T40, L26-28
[57]T42, L7-8
[58]T42, L14-17
[59]T42, L30 ꟷ T43, L7
[60]T43, L14-17
[61]T43, L19-20
[62]T45, L1-7
[63]T45, L8-9
[64]T55, L15-18
[65]T55, L19-20
[66]T55, L21-26
[67]T55, L13-14
[68]T48, L28 ꟷ T49, L3
[69]T49, L5-7
[70]T55, L6-9
[71]T49, L13-16
[72]T49, L17
[73]T49, L18-19
[74]T49, L25-28
[75]T50, L7-12
[76]T50, L20-21
[77]T51, L19-31
[78]T52, L16-23
[79]T52, L29 ꟷ T53, L8
Plaintiff’s treating doctors reports
37There were numerous reports and other correspondence tendered and relied on in this proceeding. I have confined the below summaries to those reports or correspondence which Counsel referred me to or that I have relied upon in my reasons.
Dr Malekzadeh, general practitioner
38Dr Malekzadeh authored several reports and letters tendered in these proceedings, his two most recent dated 9 July 2024 and 28 May 2025 respectively.
39In his report dated 9 July 2024, he recorded the following as Mr Taleb’s diagnosis:
“L4-LS5 broad based Disc bulging
L5-S1 central posterior Disc protrusion
Osteoarthritis of Sacro-iliac joints
Osteoarthritis of L5-S1 joint
Generalised Anxiety Disorder
Major Depressive Disorder
Intermittent Suicidal ideation
Chronic pain
Gastro-Oesophageal Reflux
Increased weight -Obesity”[80]
[80] Exhibit P1, PCB 114
40Dr Malekzadeh stated Mr Taleb’s capacity for work had certainly been impacted and “there might be a chance that it can be impacted to a similar or worse level in future too, despite the fact that we all hope that he can get better and improve rather than decline”.[81]
[81] Exhibit P1, PCB 115
41He believed Mr Taleb had no current capacity to work, and stated that Mr Taleb did not yet have a current capacity to engage in general employment.[82]
[82] Exhibit P1, PCB 115
42In his report dated 28 May 2025, he opined that Mr Taleb had no current capacity to work. He noted that in November 2023, an Independent Medical Assessment had suggested that Mr Taleb had some capacity to work, but it seemed he had deteriorated since, hence the specialists were suggesting more invasive treatment.[83]
[83] Exhibit P1, PCB 120
43When asked about Mr Taleb’s prognosis, he reported that the patient’s response to treatments was variable. He said Mr Taleb may need another procedure (Radiofrequency block) or an even more invasive approach (spinal operation) if he deteriorated or did not improve. He thought that Mr Taleb may not be able to go back to work in the foreseeable future. He stated that Mr Taleb’s psychiatrist, psychologist and pain specialist were the best people to address prognosis.[84]
[84] Exhibit P1, PCB 119
44Regarding Mr Taleb’s future capacity to work, Dr Malekzadeh was hopeful that Mr Taleb would develop a capacity for a work following treatment but it needed to be seen. He thought that Mr Taleb’ future work capacity would be limited to work that was not demanding on his back and not physical work.[85] He said it was difficult to predict at that point in time.[86]
[85]Exhibit P1, PCB 120
[86] Ibid
Mr Lo, neurosurgeon
45Mr Lo provided a letter to Mr Taleb’s GP dated 16 December 2021.
46He said that the MRI scan of November 2021 did not show any significant neural compression aside from mild disc desiccation at the L5/S1 level, and the foramen was open without nerve compression. It was his opinion that Mr Taleb suffered a back injury, but there was no clear neurological deficit. He referred Mr Taleb to Advanced Healthcare to assist in managing his pain, and did not schedule any future appointments.[87]
[87] Exhibit P1, PCB 54
Dr Hamedani, specialist pain medicine physician
47Several letters and reports authored by Dr Hamedani were tendered in these proceedings.
48In his letter to Allianz dated 13 November 2023, he diagnosed Mr Taleb as suffering from chronic myofascial pain in the lower lumbar area following a work-related injury in October 2021 with mixed neuropathic and nociceptive features.[88]
[88] Exhibit P1, PCB 129
49In his report to Mr Taleb’s solicitors dated 7 June 2025, he noted that further investigations with a nuclear bone scan showed degenerative arthritis in the bilateral sacroiliac joints and in the L5/S1 disc region.[89]
[89] Exhibit P1, PCB 135
50He considered Mr Taleb’s prognosis to be guarded, based on the chronicity of his pain, affected mental health, and personal and social function.[90]
[90] Ibid
51He was of the opinion that Mr Taleb did not have a physical and psychological capacity for his previous employment duties or general employment. He believed Mr Taleb’s condition could most probably continue in the future, but stated that assessment by an occupational therapist would be advisable for a detailed assessment.[91]
[91] Ibid
Ms Cuschieri, physiotherapist
52In a letter dated 26 October 2023, Ms Cuschieri considered whether various roles outlined in a report that was not tendered in these proceedings were suitable for Mr Taleb. She said that Mr Taleb had the capacity to work, with restrictions, as a customer services representative, contract administrator, project manager and project administrator. She said that Mr Taleb would be restricted to working a maximum of two to three hours, on two to three non-consecutive days per week. He needed to be able to sit and stand as required and take breaks to lay down or do stretches as frequently as required, but once every hour at least. He was precluded from walking more than 200 metres, walking on uneven work sites, driving for more than 30 minutes, bending, squatting and twisting. He had a maximum lifting capacity of two kilograms from waist height, and could not lift from the ground.[92]
[92] Exhibit P1, PCB 140-141
Mr Nair, neurosurgeon
53A letter from Mr Nair addressed to Dr Malekzadeh dated 2 November 2023 was tendered in these proceedings.
54After reviewing Mr Taleb, Mr Nair reported that the repeat MRI showed degenerative changes and L5-S1. He reported that the bone scan did not show any significant uptake in the same area, but that it did however show some uptake at bilateral SI joints. He reported that this meant there was no indication for surgical intervention upfront, however the information from the bone scan might be useful for the pain physician for consideration of SI joint blocks to see if that helped Mr Taleb’s back pain. He gave general guidelines on lifestyle modifications to Mr Taleb.[93]
[93] Exhibit P1, PCB 149
Mr Munro, physiotherapist
55Mr Munro provided a report dated 17 April 2025.
56He did not think that Mr Taleb’s physiotherapy regime was beneficial any longer in the management of his injury. He recommended an assessment with a multidisciplinary pain management clinic such as Advance Healthcare as he thought Mr Taleb might benefit from a multidisciplinary pain management programme.[94]
[94] Exhibit P1, PCB 165
57He stated that Mr Taleb had no capacity for his pre-injury duties. He believed Mr Taleb had a capacity to engage in employment in the future, but it would need to cater to his functional status in terms of sitting, standing and his lifting capacity. He opined that Mr Taleb would be limited to employment subject to the following criteria:
“- Sitting for maximum of 1 hour, then requires standing/walking/stretch break for 10-15 minutes.
- Standing/walking limited to 30 minutes, then requires a seated break for 10-15 minutes.
- No bending to the ground
- No lifting below mid thigh height - max weight of 5kg
- No squatting or kneeling
- No lifting above shoulder height >3kg
- No climbing ladders
- Can climb 1 set of stairs but may require a seated break afterwards for 5 minutes.”[95]
[95] Ibid
Dr Akinbiyi, consultant psychiatrist
58Dr Akinbiyi provided four reports which were tendered in these proceedings, dated 28 February 2023, 28 June 2023, 7 May 2024 and 17 July 2025.
59In his first and second reports, he set out Mr Taleb’s history and his opinion on diagnosis and prognosis.
60In his third report dated 7 May 2024, he stated that Mr Taleb’s prognosis was poor as he had ongoing chronic pain and functional limitations, and that this would act as a predisposing and perpetuating factor for his anxiety and depressive illness.[96]
[96] Exhibit P1, PCB 64
61He said the psychological injury impacted Mr Taleb’s capacity for work and would continue to do so into the foreseeable future.[97] He further said that the likelihood that Mr Taleb would regain the capacity to engage in general employment in the future was poor.[98]
[97] Ibid
[98] Exhibit P1, PCB 65
62In his fourth report dated 17 July 2025, he diagnosed Mr Taleb with the following:
“- Major Depressive Disorder
- Generalised Anxiety Disorder
- r/o Adjustment disorder with mixed anxiety and depressed mood
- Chronic Back Pain
- Cannabis Use Disorder in sustained remission”[99]
[99] Exhibit P1, PCB 69
63He reported that Mr Taleb had failed trials of several antidepressants, namely duloxetine, escitalopram, vortioxetine, fluoxetine, and venlafaxine. He recorded that Mr Taleb’s GP tried melatonin and Endep to manage the poor sleep with no relief. He noted Mr Taleb commenced Zoloft (sertraline) following a plan to wean him off venlafaxine. This transition began in April 2025, with Zoloft (sertraline) initially started at 25 milligrams and then increased to 50 milligrams. The dosage was progressively escalated to 100 milligrams, 150 milligrams, and was at 200 milligrams daily at the time of writing the report. Mr Taleb was also on Palexia and temazepam for chronic pain and insomnia, respectively. He confirmed that Mr Taleb attended his physiotherapist every week, his psychologist every four weeks, his psychiatrist every two to four weeks, and his GP every two to four weeks.[100]
[100] Ibid
64He noted that the psychological sequelae of the injury, specifically the anxiety and depressed illness and cannabis use disorder, were deeply intertwined with Mr Taleb’s physical pain. The chronic nature of these mental health conditions, combined with the financial and social stressors stemming from Mr Taleb’s inability to work, further complicated his overall recovery.[101]
[101] Exhibit P1, PCB 70
65In regards to Mr Taleb’s prognosis, Dr Akinbiyi said that while the chronic nature of his physical injury and its profound impact on his mental health and functional status indicated a guarded long-term prognosis for full recovery, his active participation in a comprehensive treatment plan offered a more favourable outlook for symptom management, improved coping, and enhanced quality of life. He opined that continued, sustained, and coordinated multidisciplinary care would be essential for optimizing his functional outcomes and mitigating the long-term effects of his injury.[102]
[102] Ibid
66Dr Akinbiyi was of the opinion that at the time, Mr Taleb had no capacity for both his pre-injury duties and general employment. His severe and pervasive anxiety and depressive symptoms, difficulty concentrating, fatigue, irritability, social withdrawal and disrupted routine directly prevented him from meeting the demands of any consistent work. His future capacity for general employment was dependent on significant and sustained improvement in his mental health. However, Dr Akinbiyi believed the long duration of his unemployment and ongoing symptoms indicated that any return to work would be a gradual process, requiring continued symptom remission, enhanced coping skills, and potentially vocational rehabilitation.[103]
[103] Exhibit P1, PCB 71
Mr Ruddock, clinical psychologist
67Mr Ruddock provided two reports dated 30 August 2024 and 2 May 2025.
68In his first report dated 30 August 2024, Mr Ruddock confirmed that Mr Taleb commenced a pain management program with Advance Healthcare. Mr Taleb completed some psychology, medical and physiotherapy treatment during the early stages of 2022. He was struggling with a formal program and moved to “slower stream treatment medical and psychology treatment” with Advance Healthcare, which Mr Ruddock was not involved in.[104]
[104] Exhibit P1, PCB 154
69Mr Ruddock said it appeared unlikely that there would be a shift in psychological symptoms for the foreseeable future. He hoped there would be some improvement to impairment levels during the following 12 months with further psychology treatment.[105]
[105] Ibid
70From a psychology perspective, Mr Ruddock anticipated that Mr Taleb would have a work capacity for part-time work (around 15 hours a week) over the following 12 months. Mr Ruddock thought he would likely need some retraining as a stepping stone towards employment.[106]
[106] Exhibit P1, PCB 155
71In his second report dated 2 May 2025 Mr Ruddock provided a provisional diagnosis of an adjustment disorder with mixed anxiety and depressed mood, in the context of his injury and persistent pain condition.[107]
[107] Exhibit P1, PCB 161
72He stated that based on his most recent reviews, Mr Taleb did not appear to have a sustainable psychological work capacity and it appeared this was unlikely to significantly change in the foreseeable future.[108]
[108] Ibid
Plaintiff’s medico-legal reports
Dr Slesenger, specialist occupational physician
73Dr Slesenger provided two reports dated 3 April 2025 and 28 June 2025 which were tendered in these proceedings.
74In his report dated 3 April 2025, Dr Slesenger noted Mr Taleb advised that he previously worked in traffic management for about 18 months and in Coles as a Trolley Collector. He also stated that he worked in a warehouse in Somerton as a Pick-packer, although there was “some uncertainty in that regard”.[109] He said that Mr Taleb had completed a bachelor’s degree in construction management, could read and write in English, had good grammar skills and had good computer skills.[110]
[109] Exhibit P1, PCB 172
[110] Exhibit P1, PCB 173
75Dr Slesenger recorded that Mr Taleb was living with his parents and two siblings in a single-storey house in Altona North.[111]
[111] Exhibit P1, PCB 172
76He said that Mr Taleb advised of medication side effects, including drowsiness, fatigue, dry mouth and occasional confusion. He was avoidant of driving when taking higher doses of medication.[112]
[112] Exhibit P1, PCB 178
77Dr Slesenger diagnosed Mr Taleb with the following:
“- Lumbar spine:
- Soft tissue injury.
- Aggravation of degenerative disease.
- Chronic lower back pain with radiating features.
- Psychological impairment, although this is outside my area of expertise.”[113]
[113] Ibid
78He recommended that Mr Taleb be subject to the following restrictions:
“- No push, pull, carry or lift over 5 kg.
- No repetitive bending or twisting.
- No prolonged static postures.
- No exposure to whole body vibration.”[114]
[114] Exhibit P1, PCB 179
79Dr Slesenger did not anticipate him returning to a role for which he had suitable training and experience on a consistent and reliable basis.[115]
[115] Exhibit P1, PCB 179-180
80Whilst he anticipated that there were likely to be variations in Mr Taleb’s symptoms, Dr Slesenger was of the opinion that his symptoms were likely to continue at a similar level into the foreseeable future.[116]
[116] Exhibit P1, PCB 180
81In his supplementary report dated 28 June 2025, Dr Slesenger considered that Mr Taleb was unlikely to be able to work on a consistent and reliable basis in the roles he was asked to comment on,[117] those being customer service representative (building company), contract administrator, facilities manager, general clerk, alarm, security or surveillance monitor, construction estimator, or construction project manager. He further advised Mr Taleb against working as a project manager or security officer, as the job demands lay outside Mr Taleb’s capacity limits, in addition to Mr Taleb being unlikely to return to this work on a consistent and reliable basis.[118]
[117]I note that these roles appear to have been outlined in a report that was not tendered in this proceeding.
[118] Exhibit P1, PCB 188
Professor Bittar, consultant neurosurgeon
82Mr Taleb was assessed by Professor Bittar, who authored a report dated 3 May 2025.
83Professor Bittar recorded that at the time, Mr Taleb lived with his parents and siblings. Professor Bittar noted that he was single with a four year old child, who lived with their mother.[119]
[119] Exhibit P1, PCB 202
84He said that on examination, Mr Taleb had severe restriction of lumbar spine flexion with moderate restriction of lumbar spine extension. Flexion was more painful than extension. Neurological examination of his lower limb did not reveal any evidence of radiculopathy or myelopathy and there was no abnormal illness behaviour.[120]
[120] Exhibit P1, PCB 204
85Professor Bittar diagnosed Mr Taleb with the following:
“1. Aggravation of lumbar spondylosis.
2. Probable L5-S1 disc injury with discogenic back pain.”[121]
[121] Ibid
86He was of the opinion that Mr Taleb’s employment remained a significant contributing factor to his ongoing pain, disability and requirement for treatment. The injury which occurred at work on October 2021 was the dominant contributing factor.[122]
[122] Ibid
87Professor Bittar said that Mr Taleb should consider the recommended radiofrequency denervation, and that further treatment options included spinal surgery. Professor Bittar stated that surgical treatment options would include an artificial disc replacement at L5-S1.[123]
[123] Ibid
88Professor Bittar did not believe that Mr Taleb had any realistic capacity for suitable employment at the time he provided his opinion. Professor Bittar believed Mr Taleb was incapacitated for both pre-injury work and alternative work.[124] He believed Mr Taleb’s long-term work capacity would be best reassessed after he had undergone further treatment.[125]
[124] Exhibit P1, PCB 205
[125] Exhibit P1, PCB 207
89He was of the opinion that the suggested employment options were unsuitable for Mr Taleb as he would not be able to perform any of those vocational options reliably and consistently as a result of his work-related lumbar spine condition at that time. This was because of his significant and unpredictably fluctuating pain levels, as well as his sitting and standing intolerance.[126]
[126] Ibid
90He stated that Mr Taleb’s prognosis was guarded, as he was likely to continue experiencing pain and disability into the foreseeable future.[127]
[127] Ibid
Dr Ingram, consultant psychiatrist
91Mr Taleb was assessed by Dr Ingram who provided a report dated 22 April 2025.
92Dr Ingram diagnosed Mr Taleb as suffering from chronic adjustment disorder with depressed mood and anxiety.[128]
[128] Exhibit P1, PCB 196
93Dr Ingram noted that Mr Taleb had been treated with two antidepressants previously, the first of which he could not remember the name and the second, Brintellix, which had to be stopped because of side-effects. He had recently been started on Saphris (asenapine), though Dr Ingram stated it was too soon to say if it was making any difference.[129] Dr Ingram stated he thought it would be appropriate for him to continue on the asenapine, though if there was no response over the next month or two, he thought it would be reasonable to have trials of other antidepressants to see if Mr Taleb could find one that he could tolerate. Dr Ingram also thought it was appropriate that Mr Taleb continued to see a psychologist to help him look at ways of dealing with his pain.[130]
[129] Ibid
[130] Exhibit P1, PCB 197
94He did not feel that Mr Taleb had any capacity for any kind of work at that time, either full-time or part-time, because of his depression and the effect that this had on his motivation, concentration and energy levels, and because of his anxiety, which contributed to his difficulty in concentrating, and his restlessness.[131]
[131] Ibid
95Dr Ingram thought that his future work capacity from a psychiatric perspective would depend on whether his depression worsened. He thought there was some chance that Mr Taleb would respond to antidepressants and might be able to manage a few hours’ work a week in a job that did not involve significant physical activity.[132]
[132] Ibid
96He said that Mr Taleb’s prognosis largely depended on the prognosis for the pain, though there may be some response to antidepressants.[133]
[133] Ibid
Defendant’s medico-legal reports
Dr Boffa, occupational and environmental physician
97Mr Taleb was assessed by Dr Boffa on one occasion, and two reports were provided dated 17 September 2022 and 20 June 2025 respectively.
98In his first report dated 17 September 2022, Dr Boffa diagnosed Mr Taleb with facetogenic low back pain without radiculopathy, erector spinae spasm with neck pain and strong fear avoidance behaviour. He opined that the cervical condition was muscular in nature and was materially contributed to the claimed injury.[134]
[134] Exhibit D1, Defendant’s Amended Court Book (“DCB”) 8
99In his second report dated 20 June 2025, which was provided on the basis of a desktop review only, Dr Boffa stated that Mr Taleb was fit to work as a trades appointment setter or scheduler (work from home), gatehouse security officer, control room operator, construction estimator – entry level, contract administrator – entry level, and junior project manager or assistant project manager. He noted that since his last report, Mr Taleb had put on some weight and was likely deconditioned, and recommended he worked four-hour shifts on three non-contiguous days per week, graduating to full-time hours over six weeks.[135]
[135] Exhibit D1, DCB 11
Associate Professor Romas, consultant rheumatologist
100Mr Taleb was assessed by Associate Professor Romas who provided a report dated 23 August 2023.
101Associate Professor Romas diagnosed Mr Taleb as having an unresolved low back injury with no clinical radiculopathy. He stated that there was no identifiable cervicothoracic spine injury, and that the accepted neck injury had fully resolved.[136]
[136] Exhibit D1, DCB 14
102He considered that the MRI scan of 5 November 2021 revealed minor findings, including a disc annular tear at the L5/S1 level and a small disc protrusion. He said that importantly, there was no evidence of neurocompression. He said the MRI indicated that the sacroiliac joints were structurally normal with no signs of sacroiliitis. He said that the SPECT scan performed on 24 March 2022 reported abnormal sacroiliac uptake, although he noted that this finding may have been subject to overinterpretation or misinterpretation.[137]
[137] Ibid
103Regarding Mr Taleb’s prognosis, he opined that the conditions were likely to persist for the foreseeable future.[138]
[138] Ibid
104Associate Professor Romas calculated a total whole person impairment of five per cent for the accepted injury, and noted that this impairment was permanent.[139]
[139] Ibid
Dr Slon, specialist pain medicine physician
105Mr Taleb was assessed by Dr Slon on 27 November 2023, who provided a report dated the same.
106He recorded that Mr Taleb was a single man who lived in the family home with his immediate family. He noted there were five people in the house altogether.[140]
[140] Exhibit D1, DCB 16
107Dr Slon diagnosed Mr Taleb with a mechanical spinal issue possibly involving the L5/S1 disc with a disc tear and no neurological compromise. He noted there may be facet-mediated pain as well.[141]
[141] Exhibit D1, DCB 17
108He concluded that his overall impression of Mr Taleb was that he probably had some idiosyncratic behaviours. Mr Taleb seemed to have a mechanical spinal issue that Mr Taleb had some work capacity, noting that he was young.[142]
[142] Ibid
109Dr Slon believed Mr Taleb could return to modified or alternative duties, stating that he could sit for up to one hour, stand for anywhere between 30 to 60 minutes, and walk for about half an hour. Dr Slon stated that bending, lifting, pushing and pulling would be impaired. He stated that Mr Taleb could not return to his pre-injury duties, for the simple fact that the COVID-19 residential plan was no longer in operation and the program had been shut down.[143]
[143] Ibid
110Dr Slon considered that the roles of customer sales representative, contract administrator, project manager, project administrator and facilities manager all constituted suitable employment for Mr Taleb.[144]
[144] Exhibit D1, DCB 18
111Dr Slon provided a supplementary report dated 8 February 2024, in which he considered Mr Taleb’s medication regime and recommended that Mr Taleb be weaned off medication completely, but ultimately directed questions regarding any safety issues relating to his current medication regime to his treating practitioner.[145]
[145] Exhibit D1, DCB 23
Mr Speck, orthopaedic surgeon
112Mr Taleb was assessed by Mr Speck on 12 February 2025, and he provided a report dated 8 April 2025.
113Upon examination, Mr Speck found that distraction testing was positive with his straight leg raise, axial compression gave a mild increase in the low back pain and simulated rotation gave Mr Taleb pain in the low back on rotation to the left and right. He found the non-dermatomal sensory change over the left lower extremity was in conjunction with the other findings sometimes described as Waddell signs and indicative of a poor response to surgical treatment for the spine.[146]
[146] Exhibit D1, DCB 101
114Mr Speck reviewed the bone scan conducted on 24 March 2022, and said that he agreed with the report. He stated that the sacroiliac joints had mild changes at the lumbosacral consistent with the constitutional desiccation seen. He reported there was no evidence of facet joint inflammation.[147]
[147] Exhibit D1, DCB 102
115Mr Speck reviewed the MRI scan of the lumbar spine taken on 5 November 2021. He said that the L5/S1 intervertebral disc showed constitutional desiccation without evidence of discoligamentous or vertebral structural injury identified.[148]
[148] Exhibit D1, DCB 103
116He also reviewed the MRI scan taken on 7 November 2022 and said that there was no neurologic compression identified to explain the leg symptoms. He further stated that the described ‘protrusion’ was a reflection of the disc desiccation and bulging associated with loss of hydration of the disc and redundancy of the annulus.[149]
[149] Ibid
117He finally reviewed the MRI scan taken on 22 September 2023, and concluded there was no neurologic compression identified to explain the leg symptoms and that the appearance had not progressed from the MRI of 2021.[150]
[150] Ibid
118He said that physical examination identified non-organic features with avoidance behaviour, and physical findings which were inconsistent. He found no evidence of radiculopathy or myelopathy on examination.[151]
[151] Exhibit D1, DCB 116
119He reported that medical imaging did not identify any disco ligamentous or vertebral structural injury, and that the changes on imaging were of a constitutional nature and not indicative of any specific physical injury to the spine.[152]
[152] Ibid
120Mr Speck opined that Mr Taleb’s presentation was indicative of a soft tissue injury at the time of the subject work injury and the development of a somatic symptom disorder or chronic pain syndrome in conjunction with other mental health issues, which he stated should be assessed by an appropriate mental health expert.[153]
[153] Ibid
121He said that interventional treatments were unlikely to be of benefit to Mr Taleb, and was of the opinion that the initial soft tissue injury would have resolved within six to 12 weeks of the work injury.[154]
[154] Ibid
Dr Shan, consultant psychiatrist
122Mr Taleb was assessed by Dr Shan on 13 September 2023, and a report was provided dated the same.
123In regards to Mr Taleb’s family history, Dr Shan recorded that at the time he lived with his parents.[155]
[155] Exhibit P1, PCB 235
124He diagnosed Mr Taleb with Major Depressive Disorder relevant to the physical injury, which he believed was not likely to resolve for the foreseeable future, with or without additional psychiatric treatment.[156]
[156]Exhibit P1, PCB 238
Dr Power-Connon, consultant psychiatrist
125Dr Power-Connon provided a report in these proceedings dated 13 December 2023.
126She diagnosed Mr Taleb as suffering from a chronic Major Depressive Disorder and anxiety.[157]
[157] Exhibit P1, PCB 255
127She thought that Mr Taleb had no current work capacity at that time. She noted that he was continuing to have medication changes with his psychiatrist. Due to the chronicity of his symptoms and lack of response to appropriate treatment, she opined that his condition was likely to continue indefinitely.[158]
[158] Exhibit P1, PCB 256
128She said that none of the employment options she was asked to consider were suitable for Mr Taleb at the time or for the foreseeable future.[159]
[159] Ibid; I note that it was not clear what the positions were from her report.
Associate Professor Doherty, consultant psychiatrist
129Associate Professor Doherty provided a report dated 13 June 2025 which was tendered in these proceedings.
130He recorded that Mr Taleb told him that he was single, never married, and living in Altona North with his parents. He said he had never moved out of his home, and lived with his mother, father, sister and brother.[160]
[160] Exhibit D1, DCB 128
131Associate Professor Doherty noted that Mr Taleb said it was very hard to get to sleep and that it might take a couple of hours due to the pain. He could not get comfortable, thought a lot and felt stressed, but nightmares and dreams were not a significant issue.[161] Mr Taleb further reported feeling anxious, though not having discrete panic episodes. Associate Professor Doherty recorded mild subjective impairment in Mr Taleb’s concentration and memory.[162]
[161] Exhibit D1, DCB 132
[162] Exhibit D1, DCB 133
132Associate Professor Doherty diagnosed Mr Taleb with an adjustment disorder, relevant to the claimed injury and its consequences, and other non-work related factors including the breakdown in his relationship, difficulties in undertaking parental responsibilities, worries about weight, and the transport accident of October 2022.[163] Associate Professor Doherty did not consider there to be a diagnosable pain-related psychiatric condition. There were some features, but in his opinion, the level of concern and distress about pain that is necessary to make a psychiatric diagnosis was not present. He stated there was known physical pathology, and the overall clinical presentation was not sufficient to warrant a diagnosis of a pain-related psychiatric condition.[164]
[163]Ibid; I note that although Associate Professor Doherty states that the October 2022 transport accident was a factor in Mr Taleb’s diagnosis, he also states in his report that Mr Taleb did not mention the October 2022 transport accident during the examination.
[164] Ibid
133When asked about Mr Taleb’s impairment, he stated there “was not much to find from a mental health point of view” at the time of assessment, but that Mr Taleb demonstrated many pain-related behaviours and emphasised incapacity, reduced personal and social activities and a reliance on his parents.[165]
[165] Exhibit D1, DCB 135
134He opined that Mr Taleb had a current work capacity when only his mental health issues were considered, and stated Mr Taleb could work in suitable job options for at least “half full-time hours, and likely on a full-time basis”.[166] He believed, from a psychiatric point of view, that Mr Taleb had a capacity to return to the roles of trades appointment setter or scheduler (work from home), gatehouse security officer, control room operator, construction estimator – entry level, contract administrator – entry level, and junior project manager or assistant project manager on a full-time basis.[167]
[166] Ibid
[167] Ibid
Vocational Reports
CoWork
135A vocational assessment and labour market analysis report was completed by CoWork, dated 12 December 2024.
136CoWork recorded that Mr Taleb was living with his father, mother, brother and sister in Altona North, in a house owned by his parents.[168]
[168] Exhibit D1, DCB 26
137The following employment options were identified as potentially suitable for Mr Taleb:
“1. Trades Appointment Setter / Scheduler (Work from Home)
2. Gatehouse Security Officer
3. Control Room Operator
4. Construction Estimator – Entry Level
5. Contract Administrator – Entry Level
6. Junior Project Manager / Assistant Project Manager”[169]
[169]Exhibit D1, DCB 30
Flexi Personnel
138An employment assessment was conducted by Ms McGrath of Flexi Personnel, and three reports were prepared dated 19 June 2025, 7 July 2025 and 22 July 2025.
139In her supplementary earnings report dated 22 July 2025, Ms McGrath reported that the current annual salary range for a construction and building manager in was $180,000 to $265,000, with the typical salary being $200,000.[170]
[170]Exhibit P1, PCB 271
Findings and reasons
Credit and reliability
140As outlined above, Counsel for the defendant submitted that both the credibility and reliability of Mr Taleb’s evidence was in issue in this case.
141I found Mr Taleb to provide straightforward and clear answers to the questions he was asked. A great deal of cross-examination was spent traversing his living arrangements, the chronology of his separation from his partner and the accuracy of the credit documents he had signed and filed with the bank. I found his evidence to be clear, straightforward and consistent with his affidavit evidence regarding these matters. He provided clear and plausible explanations about his separation from his partner on two occasions, how he came to afford and retain his two investment properties, that he had always lived in the family home (his father, brother and partner having moved out at various times) and why his loan documents were completed in the manner that they were.
142While there were different accounts of who he lived with in the family home in the reports of the various doctors he had seen for this proceeding, I formed the view that these discrepancies were not material and did not impugn Mr Taleb’s credibility as a witness.
143I also took the following into account in arriving at my decision regarding the credibility and reliability of Mr Taleb’s evidence:
(a) there was no independent evidence, such as surveillance or other documents, that was tendered to show that Mr Taleb’s evidence was not credible regarding these matters, or generally; and
(b) Mr Speck was the only medical expert to raise the possibility of exaggeration via his recounting of his distraction testing,[171] although he did not really press the point. There was no real suggestion in the medical material that Mr Taleb was exaggerating or embellishing his symptoms.
[171]Exhibit D1, DCB 101
144I therefore found that Mr Taleb’s evidence was credible and reliable and accept his evidence in full.
145Considering that, I accept and find that Mr Taleb was a fit and healthy twenty-four-year-old man prior to his work injury, who was fit for his work with the employer, led an active social life and pursued his recreational interests without back pain.
146I also accept that this changed following the workplace accident. I accept that he initially hoped that his symptoms would improve, explaining why he completed his bank loan documents in the manner that he did. However, this did not turn out to be the case, and he has now been left with the residual physical and psychological symptoms set out in his first and second affidavit, and as referred to in his oral evidence.
Physical injury
Did Mr Taleb sustain a permanent impairment as a result of his compensable lower back injury?
147I have considered his evidence with the medical evidence.
148Professor Bittar was of the view that Mr Taleb presented with an aggravation of lumbar spondylosis and probably L5-S1 disc injury with discogenic pain, and that the injury at work was the dominant factor in the pain. He thought he would continue to experience significant pain and disability into the foreseeable future.[172]
[172] Exhibit P1, PCB 204-205
149Dr Slon believed that Mr Taleb had a mechanical spinal issue, possibly involving the L5/S1 disc with a disc tear and no neurological compromise. Insofar as the diagnosis of injury was concerned, I found Dr Slon’s opinion regarding the nature of the injury was consistent with Professor Bittar’s. While he provided an opinion regarding the nature of Mr Taleb’s capacity at the time he provided his report, he was silent regarding whether the restrictions he identified were likely to continue indefinitely. While he suggested review of Mr Taleb’s incapacity every six to nine months, he did not say that he thought that the consequences of Mr Taleb’s injury would resolve. However, given his qualified comments regarding ‘permanence’, I have placed limited weight on his opinion in this regard. At most, I felt that his opinion was not inconsistent with a finding of permanence.
150Dr Slesenger was of the view that Mr Taleb had sustained an aggravation of degenerative disease, a soft tissue injury and chronic lower back pain with radiating features. He also noted a psychological impairment, noting that that was outside his area of expertise.[173] He was also of the view that while there were likely to be variations in Mr Taleb’s symptoms, they were likely to continue at a similar level into the foreseeable future.[174] I found his opinion to be consistent with that of Professor Bittar, save that Professor Bittar did not raise the prospect of a soft tissue injury.
[173]Exhibit P1, PCB 178
[174]Exhibit P1, PCB 180
151Dr Hamedini noted that in his initial assessment in March 2022 he diagnosed chronic primary myofascial pain in the lower lumbar area. He went on to note that further investigations with a nuclear bone scan showed degenerative arthritis in the bilateral sacroiliac joints and in the L5/S1 disc region.[175] As I read his opinion, it was not inconsistent with a finding that there was an organic injury in the lumbar spine, the consequences of which were likely to be ongoing given that the prognosis was guarded.
[175] Exhibit P1, PCB 135
152While Mr Lo noted that there was no clear neurological deficit shown on the MRI scan, he noted that it showed mild disc desiccation at the L5/S1 level.[176] As I read his letter, this did not exclude the possibility of structural injury explaining Mr Taleb’s pain. I also noted that the material tendered from Mr Lo was a relatively short letter to Dr Malekzadeh directed to further treatment options approximately two months after the date of injury, rather than diagnosing the cause of the back pain for medico-legal purposes. To the extent I found this useful, it was insofar as it was not inconsistent with the opinions of the experts listed above.
[176] Exhibit P1, PCB 54
153Mr Nair noted the degenerative changes at L5-S1, advised that he did not believe surgery was indicated and suggested that S1 joint blocks may be useful to help Mr Taleb’s pain.[177] As I read his letter, after reviewing the MRI, he too did not exclude the possibility of structural damage as an explanation of Mr Taleb’s pain. Again, this was a short letter to Dr Malekzadeh for treatment rather than for medico-legal purposes. However, the fact it was written about two years after the injury meant that I placed some weight on it when arriving at my conclusion about injury and permanence.
[177] Exhibit P1, PCB 149
154On the other hand, Mr Speck believed Mr Taleb had sustained a soft-tissue injury in the accident, which would have resolved within six to 12 weeks following the injury.[178] He believed that the changes on imaging were constitutional in nature and not indicative of any specific injury to the spine.[179]
[178] Exhibit D1, DCB 117
[179] Exhibit D1, DCB 116
155Associate Professor Romas diagnosed Mr Taleb with an unresolved back injury with no clinical radiology.[180] He thought that the MRI demonstrated that the sacroiliac joints were structurally normal with no signs of sacroiliitis. He noted that the bone scan performed on 24 March 2022 reported abnormal sacroiliac uptake but commented that the finding may have been subject to over interpretation or misinterpretation.[181] While he did not state whether he was of the view that this had occurred in Mr Taleb’s case, I have inferred that he did not find the abnormal sacroiliac uptake relevant to his ultimate opinion.
[180]Exhibit P1, PCB 229
[181]Ibid
156Despite his diagnosis, Associate Professor Romas went on to find that Mr Taleb had a five per cent whole person impairment of the lower back. I found it hard to reconcile his impairment assessment with his diagnosis of the injury. For these reasons, I did not find his opinion to be of great assistance in resolving the question of Mr Taleb’s injury and whether he had been left with a permanent impairment.
157I ultimately preferred the opinion of Professor Bittar to that of Mr Speck and Associate Professor Romas on the question of injury and permanent impairment, both due to Professor Bittar’s expertise and because the weight of opinion supported his conclusions. That is, Professor Bittar and Dr Slesenger found there to be an organic basis for the spinal injury, and that the consequences of that injury were likely to be permanent. Their opinions were consistent with, in part or in whole, the opinions of Dr Slon and Dr Hamedani, and not inconsistent with the correspondence tendered from Mr Lo and Mr Nair.
158Considering the totality of the evidence, I accept and find that Mr Taleb had asymptomatic lumbar spondylosis prior to the industrial accident, that was rendered symptomatic by the industrial accident, the effects of which continued until the date of the hearing and will continue into the foreseeable future.
159I find that he sustained an aggravation of lumbar spondylosis and a probable L5-S1 disc injury with discogenic back pain in the industrial accident of 21 and 22 October 2021, and that the pain and symptoms he suffered from and will continue to suffer from into the foreseeable future arose from that aggravation.
160I therefore find that Mr Taleb has sustained a permanent impairment to his lumbar spine because of the incident of 21 and 22 October 2021.
Are the consequences of the aggravation very considerable?
161Mr Taleb suffers from the following consequences because of the aggravation of his lumbar spondylosis:
(a) his sleep is impacted by reason of the pain;
(b) his walking tolerance is for thirty minutes, and at most an hour, with a ten-minute break in-between. His sitting and standing tolerance is for an hour, however there are days when he cannot sit, walk or stand for that long. He takes rests and naps during the day because he does not get a good night’s sleep. He avoids bending, twisting and heavy lifting. He has difficulty with his concentration and memory;
(c) he is restricted with his physical activities and recreational activities such as camping and fishing. He used to assist his family with gardening and lawn mowing before he was injured, but is no longer able to do so. He used to enjoy travelling but has not been overseas since suffering his injury. He avoids driving long distances due to increased pain;
(d) he avoids social gatherings because he struggles to stand for long periods and does not like talking about his injury when asked;
(e) He has difficulty lifting and physically playing with his son and struggles to kick a soccer ball with him. His physical injury has interfered with his relationship with his son, which has been very challenging for him;
(f) the consequences of his physical injury played a role in the breakdown of his relationship with his former partner and have continued to be a barrier to reconciliation. His intimate relationship with his partner was affected by his physical injury and its consequences;
(g) he gained weight because of inactivity. Bariatric surgery was recommended, but he ultimately treated this with Ozempic;
(h) he has undergone physiotherapy and hydrotherapy since the time he was injured. He has participated in a multidisciplinary pain program. He had chiropractic treatment and acupuncture. He has undergone sacroiliac injections on two occasions. Radiofrequency nerve ablation was recommended, which he did not proceed with due to the risks involved. He has suffered gastric upset and constipation because of the medication he has taken for his injury, and takes a laxative medication to treat this;
(i) his takes slow release Palexia tablets twice a day. He takes instant release Palexia when his pain is worse. He takes Norgesic and Celebrex during flare-ups of severe pain. He has used cannabis to help manage the pain. He takes temazepam to assist him to become drowsy to go to sleep; and
(j) he has not worked since the date of the injury. He would love to work but does not know what he could do with his restrictions;
(k) he suffers from constant pain in his lower back extending into his left leg, with back spasms and flare-ups. He suffers from neck pain on and off which he attributes to poor posture.
162I have placed weight on the fact that Mr Taleb is a young man and will suffer from these consequences for the rest of his life.
163I found him to be an industrious man based on his pre-injury employment and entrepreneurial history, particularly the fact that he obtained a high-paying job during the COVID-19 pandemic when jobs were otherwise hard to come by. I placed weight on this when arriving at my conclusion about the consequences of the injury and impairment on him.
164In addition to considering what he has lost, I am required to consider what he has retained. I find that he has retained the following:
(a) he can drive, albeit that he avoids driving for long distances;
(b) he can manage the basic activities of daily living, such as showering, dressing and eating;
(c) he can attend social gatherings, albeit that he attends for a shorter time than previously; and
(d) he can participate in a gym program under the supervision of his physiotherapist. He lifts five kilogram weights in that program. He can manage 15 minutes on the treadmill before he begins his exercises. Although each day differs, he can walk for up to an hour with a ten-minute rest in-between, and can sit and stand for an hour.
165I find that the consequences of the spinal injury and impairment to Mr Taleb, when judged in comparison to other cases of injuries and impairment, are fairly described as being “at least very considerable” and “more than significant or marked”.
Do the impairment consequences arising from the spinal impairment cause a loss of earning capacity of 40 per cent or more?
166Ordinarily, a worker would need to establish that they had a 40 per cent or more loss of earning capacity if rehabilitated or retrained, based on a comparison of the workers earnings from personal exertion in the three years before and after the injury to be entitled to leave to proceed for their loss of earning capacity
167However, workers who are under twenty-six years of age as at the date of the injury need only establish that they have a 40 per cent or more loss of earning capacity based on ordinary common law principles to be entitled to a grant of leave.[182]
[182]Workplace Injury Rehabilitation and Compensation Act2013 (Vic) s325(2)(e)
168As Mr Taleb was under twenty-six years of age at the date of his injury, the ordinary common law principles apply.
169As outlined above, I found Mr Taleb to be a hard-working industrious young man prior to sustaining his injury. He worked while he was studying at university, he was a director of his own business and he found high paying employment during the COVID-19 lockdown period, a time when jobs were hard to come by.
170As also outlined above, I found his evidence to be credible and reliable.
171I therefore accept that had Mr Taleb not been injured, he would have gone on to pursue a career in the building and construction industry using the qualification he had worked hard to obtain at university.
172The evidence from CoWork was that a person of Mr Taleb’s age, experience and transferrable skills, would be capable of earning no less than $1,940 gross per week.[183] The evidence of Ms McGrath from Flexi Personnel was that a construction and building manager in Victoria is paid a salary range of $180,000 to $265,000 gross per year, with a typical salary being $200,000,[184] or expressed as a weekly wage between $3,450 gross per week and $5,000 gross per week.
[183]Exhibit D1, DCB 52
[184]Exhibit P1, PCB 271
173Based on Mr Taleb’s employment history, I accept that had Mr Taleb not been injured he would have pursued high paying employment in the building and construction injury.
174However, for the purpose of this gateway application I have accepted the evidence of Ms McGrath regarding the ‘typical salary’ of a construction and building manager being $200,000 a year, equating to gross weekly earnings of $3,847.
175Sixty per cent of that figure is $2,307 gross per week.
176Turning to the medical evidence regarding Mr Taleb’s future work capacity, Dr Malekzadeh did not believe Mr Taleb had a current work capacity. While he was optimistic that he may develop a capacity for productive work, he said it would be a different type of work that was not demanding on the back and not a physical type of work.[185] However, he ultimately deferred to a psychiatrist, psychologist or pain specialist as being the best people to give an answer to the question.[186]
[185]Exhibit P1, PCB 120
[186]Exhibit P1, PCB 119
177Dr Hamedani did not believe that Mr Taleb had a physical or psychological capacity for his previous employment duties or general employment. He thought that Mr Taleb’s condition would continue into the future, however deferred to the opinion of an occupational therapist for a detailed assessment.[187]
[187]Exhibit P1, PCB 135
178Professor Bittar was of the view that Mr Taleb had no realistic capacity for suitable employment and that he was likely to experience significant pain and disability into the foreseeable future.[188]
[188]Exhibit P1, PCB 206
179In her report of 26 October 2023, Ms Cuschieri wrote that Mr Taleb had a very limited capacity for work but could handle two to three-hour shifts at a maximum in the roles of Customer Services Representative, Contract Administrator, Project Manager and Project Administrator to begin with.[189] He would need to be able to sit, stand and move between each position as frequently as he needed to. A sit-to-stand desk would be best. He would also need to be able to take breaks from work tasks to lay down or do stretches for five to ten minutes as frequently as required (for example, every one to one-and-a-half hours). She thought Mr Taleb was precluded from walking more than 200 metres, walking on uneven work sites, driving for more than 30 minutes, bending, squatting and twisting. She said he had a maximum lifting capacity of two kilograms from waist height, and could not lift from the ground.[190]
[189] Exhibit P1, PCB 140; I note that these roles were not referred to in any of the tendered material.
[190] Exhibit P1, PCB 140-141
180Having reviewed her opinion I formed the view that, as at the date of her report, she thought he had a very limited capacity for suitable employment and that she was hopeful Mr Taleb would improve with weight loss, physiotherapy, hydrotherapy and a gym program.
181However Mr Taleb’s evidence, which I accept, was that he only had marginal improvement from the time Ms Cuschieri wrote her report in 2023 and that such improvement was variable, in that his walking, sitting and standing restrictions differed each day.[191]
[191]T55, L15-20
182Dr Slon was of the view that Mr Taleb had some work capacity and could return to modified or alternative duties and hours. He accepted the history from Mr Taleb that sitting was possible for up to one hour and standing for about sixty minutes. However, bending, lifting, pushing and pulling would be impaired. He thought Mr Taleb had a current work capacity for suitable employment, although he noted that Mr Taleb did not agree. He thought that sitting, standing, walking and driving would be moderately impaired, whereas bending, lifting, pushing and pulling would be more impaired.
183He provided his opinion on the occupations identified in a report of April 2023 which was not tendered in these proceedings. He found that the positions of sales representative, contract administrator, project administrator and facilities manager were suitable.
184As the report that he based his opinion on was not tendered in these proceedings, I was unable to form a view about whether his opinion on the nature of those duties was consistent with the restrictions that he and the other medical experts identified. I therefore have not placed weight on that part of his opinion.
185Turning to the occupational physicians, Dr Slesenger was of the view that Mr Taleb would be subject to the following restrictions into the foreseeable future:
(a) no push, pull, carry or lift over five kilograms;
(b) no repetitive bending or twisting;
(c) no prolonged static postures; and
(d) no exposure to whole-body vibration.[192]
[192]Exhibit P1, PCB 179
186He was of the view that Mr Taleb could not return to his pre-injury role as the job demands were outside of his capacity limits.
187Considering his current symptoms and functional limitations, his past employment history, his literacy skills, his computer skills, his residential location (Altona North), his qualifications, the variable and unpredictable nature of his symptoms and his medication side effects, he did not anticipate Mr Taleb returning to a role for which he had suitable training and experience on a consistent and reliable basis. He thought there were likely to be variations in his symptoms and that those symptoms were likely to continue at a similar level into the foreseeable future.[193]
[193]Exhibit P1, PCB 179-180
188He also then considered roles identified in various vocational reports, the only one of which tendered in these proceedings was the CoWork vocational assessment dated 12 December 2024. I have therefore confined my analysis to his opinion on the roles identified in the CoWork report.
189He did not believe that Mr Taleb was likely to be able to return to the following positions on a consistent and reliable basis:
(a) general clerk;[194]
(b) alarm, security or surveillance monitor;[195]
(c) construction estimator;[196]
(d) contract administrator;[197] and
(e) construction project manager.[198]
[194]I have taken this to refer to the role of “Trades Appointment Setter / Scheduler (Work from Home)” identified by CoWork, but I note that Dr Slesenger has referred to the role’s ANZSCO Classification.
[195]I have taken this to refer to the role of “Control Room Operator” identified by CoWork, but I note that Dr Slesenger has referred to the role’s ANZSCO Classification.
[196]I have taken this to refer to the role of “Construction Estimator – Entry Level” identified by CoWork, but I note that Dr Slesenger has referred to the role’s ANZSCO Classification.
[197]I have taken this to refer to the role of “Contract Administrator – Entry Level” identified by CoWork, but I note that Dr Slesenger has referred to the role’s ANZSCO Classification.
[198]I have taken this to refer to the role of “Junior Project Manager / Assistant Project Manager” identified by CoWork, but I note that Dr Slesenger has referred to the role’s ANZSCO Classification.
190He did not recommend that Mr Taleb return to work as a security officer, as the job demands lay outside his capacity limits.[199]
[199]Exhibit P1, PCB 181; I have taken this to refer to the role of “Gatehouse Security Officer” identified by CoWork, but I note that Dr Slesenger has referred to the role’s ANZSCO Classification.
191He did not anticipate a significant change in Mr Taleb’s presentation in the foreseeable future.[200]
[200]Ibid
192Dr Slesenger’s opinion regarding the variability of Mr Taleb’s symptoms accords with Mr Taleb’s affidavit and oral evidence, which I have accepted as outlined above.
193I did not find there was any deficiency in his opinion by reason of not having the history of Mr Taleb’s experience of running his own tiling business, on the basis of the restrictions he identified and given that he considered the suitability of non-physical positions.
194In contrast, Dr Boffa’s most recent report opines that Mr Taleb was fit to work as a trades appointment setter or scheduler (work from home), gatehouse security officer, control room operator, construction estimator – entry level, contract administrator – entry level, and junior project manager or assistant project manager. He recommended Mr Taleb work four-hour shifts on three non-contiguous days per week, graduating to full-time hours over six weeks.
195However, Dr Boffa’s most recent opinion was based only on a desktop review, and thus lacked the benefit of up-to-date objective examination findings and observations. While his earlier report was based on an examination and a review of the material, it was out of date. I thus preferred Dr Slesenger’s opinion to that of Dr Boffa.
196I am required to arrive at my decision based on the evidence as at the date of the hearing.
197I find that as at the date of the hearing, Mr Taleb does not have a capacity for suitable employment on a consistent and reliable basis, and that this will continue into the foreseeable future. Given that no positions were identified that were consistent with his restrictions, I accept that for the purpose of this gateway application, Mr Taleb has established that he has a permanent loss of earning capacity of 40 per cent or more, entitling him to leave to proceed for a claim for damages.
Conclusion regarding application for leave for his physical injury
198I therefore find that Mr Taleb is entitled to leave to proceed with a claim for damages based on his pecuniary loss and his pain and suffering because of the injury and impairment to his lumbar spine sustained on 21 and 22 October 2021.
Psychological injury
Is Mr Taleb entitled to leave to proceed as a result of his mental or behavioural disturbance or disorder?
199On the basis of my findings above, it is not necessary for me to decide whether Mr Taleb is entitled to leave to proceed on the basis of his paragraph (c) application.
200However, had I been required to do so, I would have found that he was entitled to leave to proceed on the basis of the following:
(a) he has been diagnosed with Major Depressive Disorder and Generalised Anxiety disorder by his treating psychiatrist,[201] which was not dissimilar to the opinions of the experts which I have preferred below;
(b) he has required ongoing psychological and psychiatric treatment since the date of the injury which is likely to continue in the foreseeable future;
(c) he has required antidepressants on an ongoing basis. He is now on his sixth form of antidepressant, being Zoloft (sertraline), which has increased from 50 milligrams to 200 milligrams over the space of three months; and
(d) Mr Ruddock,[202] Dr Mary Power-Connon,[203] Dr Akinbiyi,[204] and Dr Ingram[205] were of the view that he had no current work capacity based on his psychological injury and that this was likely to continue into the future. Dr Ingram thought he might be able to manage a few hours a week in a non-physical job in the future, depending on his response to antidepressants. I would have preferred their opinions to that of Associate Professor Doherty,[206] both with respect to diagnosis and present and future capacity for employment, given the consistency between their opinions and the inconsistency with Associate Professor Doherty’s.
[201]Exhibit P1, PCB 69
[202] Exhibit P1, PCB 161
[203] Exhibit P1, PCB 256
[204]Exhibit P1, PCB 71
[205] Exhibit P1, PCB 197
[206] Exhibit D1, DCB 135
201I accept Mr Taleb’s evidence that he:
(a) often cries for no reason;
(b) feels useless and worthless;
(c) does not enjoy the things that he used to do;
(d) worries about everything; and
(e) is anxious and irritable.
202I accept that his relationship with his partner broke down in part because of his psychological injury. I accept that his sleep is partly disrupted because of his anxiety. I accept the impact of his reduced family and social life has a psychological consequence. I accept that these consequences will continue into the foreseeable future based on his evidence and the evidence of the medical experts.
203I accept they would also be productive of a 40 per cent or more loss of earning capacity into the foreseeable future.
Conclusion
204As outlined above, I have found that Mr Taleb is entitled to leave to proceed with a claim for damages for his spinal injury based on his pecuniary loss and his pain and suffering.
205I asked the parties to draft orders to reflect this finding and will hear from the parties on the question of costs.
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