Venci Leo Pavicic v Samantha Scott Ely Webb - [2013] ACTSC 41

VENCI LEO PAVICIC v SAMANTHA SCOTT ELY WEBB
[2013] ACTSC 41 (22 March 2013)

PERSONAL INJURY – damages – car accident – physical and psychological injuries – Somatoform Disorder or a Pain Disorder with psychological factors and a medical condition – plaintiff’s credibility – whether failure to mitigate – assessment of general damages and past and future loss of income earning capacity

No. SC 520 of 2004

Judge: Burns J
Supreme Court of the ACT

Date: 22 March 2013

IN THE SUPREME COURT OF THE     )
  )          No. SC 520 of 2004
AUSTRALIAN CAPITAL TERRITORY           )

BETWEEN: VENCI LEO PAVICIC
Plaintiff
AND:SAMANTHA SCOTT ELY WEBB
Defendant

ORDER

Judge:  Burns J
Date:  22 March 2013
Place:  Canberra

THE COURT ORDERS THAT:

There is judgment for the plaintiff in the sum of $920,501.07.

The defendant is to pay the plaintiff’s costs of the proceedings. This order is suspended for seven days to allow the parties within that period to list the matter for further argument on the issue of costs.

On 10 March 2004 the plaintiff was the driver of a Holden Commodore sedan travelling in a southerly direction along Streeton Drive approaching the intersection with Namatjira Drive. At that time the defendant drove her Holden Commodore sedan from Namatjira Drive into Streeton Drive, colliding with his vehicle. It is common ground that the defendant failed to give way to the plaintiff, and the collision was a result of the defendant’s negligence. The defendant has admitted liability, but disputes the extent of the injuries sustained by the plaintiff. Additionally, the defendant alleges, in their Amended Defence of 8 October 2007, that the plaintiff failed to act reasonably to mitigate any loss or damage by reason of:

a)Failure to undergo psychological treatment at the earliest practicable opportunity after it was recommended to him;
b)Failure to undertake rehabilitation at the earliest practicable opportunity after it was recommended to him;
c)Failure to accept the defendant’s offers of rehabilitation assistance when they were made to him;
d)Failure to attempt to return to the workforce; and
e)Failure to pursue alternative employment opportunities.

The matter came before me as a rehearing. In 2010 Master Harper gave judgment for the plaintiff, but that judgment was overturned in the Court of Appeal and remitted for rehearing limited to the question of damages. I have not read Master Harper’s judgment.

The Plaintiff’s History

The plaintiff was born on 20 October 1971 and was 32 years old at the date of his injury. He is currently 41 years old. He attended schools in the ACT, completing year 12 in 1989. He obtained a year 12 certificate, but only passed about half of his subjects. In 1990 he attempted to repeat years 11 and 12 at the Reid TAFE. He did five or six subjects, but again passed only about half of them.

At that time, the plaintiff was keen to be a motor mechanic. He went to the Commonwealth Employment Services looking for an apprenticeship. Despite attempts to obtain an apprenticeship for approximately 12 to 18 months, he was unsuccessful. He then started looking for any type of work he could get. He did a bit of window cleaning of new houses for builders, but this was only short term. Most of the time from 1991 until 1993 he was on unemployment benefits.

Whilst the plaintiff was registered with the CES he did an office administration course. This involved introduction to filing and basic computer concepts. He believes that this course ran for approximately three to five months.

The plaintiff undertook labouring work for a firm named JP Cordukes for six or seven months, and then obtained a labouring position with the Richmond Fellowship. In this latter position he did a bit of landscaping and minor building work. He was in this position for six or seven months.

In 1995, he commenced work with Woolworths. He obtained this employment by directly approaching the manager of the store at Woden. His duties included stocking, cleaning, working on the register and working in the back dock. Initially, he was working 20 hours per week. He had no difficulty performing his duties. He continued in that work for about three and a half years before the store put most of its staff “on call”. This reduced his hours of work.

The plaintiff then sought further employment. He found work at Coles supermarket in approximately 1999. He was performing much the same type of work as he had previously performed at Woolworths. Initially, he was working part time, 28 hours per week, however after a few months, Coles also moved much of their staff to on call. At that point his work virtually ceased.

After working at Coles he returned to Centrelink to try to find employment. He then attended a telecommunications course for about three to five months. This provided him training for call centre work. He completed the course successfully, and then applied for work at employment agencies by putting in his resume. He was not successful.

In November 2002, he found employment with a company called CE Industries Pty Ltd, a building supply company. This was a fulltime position as a storeman. He was required to maintain the store, receive goods, and occasionally deliver goods. The firm dealt mainly in concrete products, and tiling goods. The plaintiff described this work as quite physical with lots of heavy lifting. He stated that he enjoyed working at CE Industries. He was employed there for 38 hours per week up until the accident on 10 March 2004.

THE ACCIDENT AND INJURIES

The Plaintiff’s Evidence at Hearing

On 10 March 2004, the plaintiff was sick and did not attend work. He went into Civic during the day. It was on his return trip from Civic that the collision occurred, and he was injured. The plaintiff testified that upon impact his head struck part of the steering wheel or the dashboard. At that time he was wearing a seat belt. Initially, he was able to get out of his car. He described himself as clearly shock[ed] and was bleeding from the mouth. An ambulance attended, but attended to the driver of the other vehicle. The plaintiff’s brother attended the scene of the accident and drove him to hospital. At that time, he had pain in his mouth, and had apparently suffered a broken tooth. He also had pain in his chest area. At the hospital he had trouble getting up from a laying down position resulting in the medical staff recommending an x-ray of his chest. He was treated for injuries to his mouth, his tooth and also various cuts. He was given a Tetanus shot. He was treated in the Emergency Department, and sent home later that night. His brother drove him home.

Over the next couple of days he had increasing neck pain. His jaw was trembling and his tooth was sore. Also his knee was giving way. He had trouble sleeping.

He went to see a dentist a couple of days after the accident. The dentist repaired his broken tooth. There was apparently some concern about whether the tooth would require a root canal treatment, but the dentist wanted to allow the tooth to settle down before determining whether that was necessary.

The plaintiff was due to return to work on the Thursday and Friday of the week that the accident occurred. However, he was not able to return to work because of the injuries from the accident. He obtained a medical certificate.

By the Tuesday after the long weekend following the accident the plaintiff had increasing neck pain. His other symptoms in his jaw, chest and leg were still there. He returned to his workplace and spoke to his supervisor. He told his supervisor that he had been in a motor vehicle accident, and was given office type work for a day. Over the next two days he was required to return to normal duties, causing extreme pain in his neck. He also experienced an episode of loss of strength in his arms, with an inability to close his fists properly.

On 19 March 2004, he spoke to his supervisor and told him that he was suffering extreme pain and weakness. He asked if he could use his sick and holiday leave to recuperate. His supervisor agreed. The plaintiff then returned to Canberra Hospital, and had x-rays of his neck. He was told to take Panadol and Neurofen.

The plaintiff went to see his general practitioner, Dr Leerdam on 23 March 2004. The plaintiff testified that on that occasion he believes Dr Leerdam gave him Mobic and advised him to be active, and to go to physiotherapy and rehabilitation. Dr Leerdam referred him to a physiotherapist and gave him a certificate of unfitness for work for a couple of weeks. The plaintiff attended the physiotherapist recommended by Dr Leerdam at Woden Physiotherapy. He had two or three treatments at that practice, but found it quite a painful experience. He stated that the physiotherapist used his fingers to probe his neck and back. The plaintiff then went to see another physiotherapist, a Mr Bloom at Weston. He saw him for about eight to ten weeks. Whilst he did not undertake the painful probing that the previous physiotherapist had engaged in, he gave the plaintiff a number of exercises that increased the plaintiff’s symptoms. The plaintiff found that he obtained no relief from the exercises recommended by Mr Bloom. During the time that the plaintiff saw the physiotherapists he continued to see Dr Leerdam. He was prescribed Mobic and Valium and possibly Endep in the first two months of his treatment.

On 22 June 2004, the plaintiff saw Dr Evans, a general practitioner in the same practice as Dr Leerdam. He referred the plaintiff to Dr Speldewinde, a rehabilitation specialist at Capital Rehabilitation. He also prescribed Tramal. The initial dose of Tramal did not relieve the plaintiff’s pain. He went back to his general practitioner who prescribed him Endep and increased the dose of Tramal to 100 milligrams. The plaintiff found that he still obtained no relief, and eventually he was given 150 milligrams of Tramal. He has taken that dose since that time.

The plaintiff was able to see Dr Speldewinde towards the end of August 2004. The plaintiff agreed to undertake a rehabilitation program with Dr Speldewinde. Dr Speldewinde stressed to the plaintiff the importance of maintaining and increasing the range of movement in his neck. Dr Speldewinde suggested a course of treatment on an MCU machine. The plaintiff’s head was strapped into this machine which used weights to improve the strength in his neck. This treatment commenced in August or September 2004 and continued for six or seven months, twice a week. The plaintiff stated that this treatment greatly improved the strength and range of movement in his neck, but did not assist in eliminating his pain.

At Capital Rehabilitation he also saw a psychologist who talked about the concept of phantom pain. The plaintiff, who was certain that his pain was real, found the suggestion that the pain may be “all in his head” somewhat offensive.

After undertaking the program on the MCU machine, Dr Speldewinde commenced the plaintiff on a course of treatment on a Graviton machine. Apparently this is a machine on which the plaintiff was required to do weight assisted chin-ups. He found it extremely painful, but in retrospect felt that it may have been his fault as his kept pushing himself. He used this machine for about three months.

The plaintiff stated that by this time he was feeling frustrated. He saw another physiotherapist at Capital Rehabilitation, who recommended a swimming program. He stated that this increased the level of his pain.

By the end of March 2004, he approached his employer to ask for more time off to recuperate. His employer was sympathetic, but stated that he could not do without a storeman. Accordingly, the plaintiff resigned.

The plaintiff testified that between March 2004 and January 2005 he could not physically have done the work that he had previously undertaken at CE Enterprises.

In November and December 2004 the plaintiff underwent four series of injections into his neck by Dr Speldewinde. On each occasion Dr Speldewinde administered three or four injections into slightly different parts of his neck. He found that process very painful.

In 2005, Dr Speldewinde administered injections into the plaintiff’s trapezius muscles, at points which he referred to as trigger points. The plaintiff stated that they helped with his range of movement, but did not assist with his pain.

In July 2005, the plaintiff was sent to see Dr Oates on behalf of the defendant. Subsequently, the insurer declined to make any further payments for treatment on behalf of the plaintiff.

In June or July 2005, the plaintiff ceased treatment with Dr Speldewinde at Capital Rehabilitation. He had been treated for more than 12 months and was still in pain, and felt quite disillusioned with rehabilitation. As a last resort, he tried a number of swimming exercises, but they also increased his pain.

After he ceased treatment at Canberra Rehabilitation he continued to see his general practitioner and to use Tramal. He tried acupuncture for about four weeks, but found no relief.

In late 2005, he was sent by his lawyers to see a psychiatrist, Dr Veness. Dr Veness recommended treatment by a pain specialist in Sydney, Dr Champion. He provided the plaintiff with a referral to see Dr Champion.

Dr Champion changed the plaintiff’s medication, although he continued to take Tramal. Dr Champion also suggested an MRI scan. The plaintiff stated that none of the treatment that was recommended by Dr Champion made any significant difference to his pain.

During the time that the plaintiff was treated by Dr Speldewinde at Canberra Rehabilitation, he also underwent trigger point treatment. He was taught this process by an exercise therapist at Canberra Rehabilitation. The process involves applying pressure to the most painful area of his body. Depending upon the amount of pressure that was able to be exerted, and the period for which it was exerted, it would provide him relief for half an hour to an hour at a time. The plaintiff testified that he would occasionally administer this trigger point treatment to himself, but that his mother and brother also helped administer the treatment.

Since ceasing treatment with Dr Champion the plaintiff has continued to see his general practitioner and continued to use Tramal. He finds that treatment with Tramal at 150 milligrams eases the pain in his neck, but it does not completely eradicate it. Further, when the pain is very bad, nothing has any effect. He currently does not take Tramal every day, and there may be two or three days a week when he does not use it. He now takes only one tablet a day when he does use it, as he finds if he takes two tablets he cannot sleep. The medication takes approximately two hours to work, then provides him with some relief for between seven to nine hours.

Since the accident the plaintiff, stated that he cannot sleep on his stomach. He also has reduced sleep. How long he sleeps depends on the level of his pain. Lack of sleep also increases the pain in his neck.

The plaintiff stated that since the motor vehicle accident he has only driven once. That was when he was working shortly after the accident. He stated that he has not driven since because he does not want to endanger anyone. He purchased another vehicle after the accident, but that vehicle is currently unregistered and sitting in the garage at his home. The plaintiff usually travels by bus, or his brother drives him to and from appointments.

The plaintiff stated that he has looked for work after the accident. He is not able to do the sort of work that he did at CE Industries, Woolworths or Coles because of the pain. He stated that the pain is constant and as such the physical work that he had previously undertaken he can no longer do. He has not been able to find work of a sedentary nature.

On 17 June 2010, the plaintiff was involved in a further motor vehicle accident. He was a passenger in the front passenger seat of a vehicle driven by his brother. It was a rear end collision, with a four wheel drive colliding with the back of his brother’s vehicle. This collision resulted in increased pain in the plaintiff’s neck for a period of approximately three weeks before it returned to its previous level. The plaintiff went to hospital to get his neck checked out after the accident, but was not provided with any specific treatment for that aggravation.

The plaintiff stated that his neck pain is still constant. It is exacerbated by lack of sleep, pulling objects, lifting objects, pushing objects or sitting in one position for any length of time. He has also suffered headaches as a consequence of his injury. Initially, these involved shooting pains radiating into his head from the back of his neck, but over time these headaches have changed to pain in the occipital region.

The plaintiff testified that the injuries to his chest and ribs, and his leg pain all resolved within approximately six weeks of the motor vehicle accident.

The plaintiff has at all times resided with his mother. His brother also resides in the same premises. Before the accident the plaintiff used to undertake domestic activities, including doing most of the outdoor work around the house. Now his brother undertakes this work.

Before the accident the plaintiff described himself as being physically fit. He did, however, suffer from a condition referred to as Bilateral Persistent Pupillary Membranes, which affected his eyesight in his right eye.

Before the accident he did a lot of physical activity, including playing competition soccer. He trained for soccer by running every day. He also went in organised fun runs in 2002 and 2003, including the Canberra Times fun run. In those two years he participated in that fun run with his brother as a team. He and his brother won the “brother’s team” event both years. He also occasionally played tennis and fished. The plaintiff stated that whilst he had occasionally been injured at soccer, he had not suffered any injury that put him out for any significant period.

The plaintiff has not been able to return to any sports or recreational activities that he undertook before the accident. These activities increase his pain. He is able to walk regularly, and walks about five or six days a week. He can walk for about one hour with breaks. Any running or swimming increases his pain. He has not tried to return to tennis or fishing.

With respect to the tooth that was injured in the accident, after his initial dentist visit the pain continued but eased over a period of time. Subsequently, he was diagnosed with a cracked tooth which required a crown. This was inserted about six months after the accident. Since that time he has not had any pain in that tooth.

In cross examination the plaintiff was asked about the second accident where he was a passenger in a motor vehicle driven by his brother which was involved in a rear end collision. He stated that the exacerbation to his neck pain lasted about three weeks. He stated that when he went to the hospital after that accident he did not recall receiving any treatment, although the doctor probably would have examined him. He agreed that he may have been provided with some non steroidal anti-inflammatory drugs.

The plaintiff was questioned about his brother’s occupation as a share trader. He agreed that his brother conducted that business from home, using a computer. He testified that he used a notebook to undertake research into his condition, and in the past into employment opportunities. Previously, he had undertaken some work from home filling in medical forms and had also attempted survey work. He said that he had not attempted share trading, and would not be capable of undertaking that type of work. He said that he would not be able to sit for the hours required. At least one of the jobs he had attempted from home proved to be a scam.

The plaintiff was cross examined about whether he had considered undertaking a course at TAFE. He said that he had not obtained a TAFE handbook over the last few years, but he would be prepared to look at online courses, if there were no time constraints on completing the tasks involved.

The plaintiff testified that he no longer holds a current drivers license. It expired in November 2011. He agreed that he made an application for renewal of his drivers license on 15 January 2008. He said that he applied its renewal so that he could use it as a form of identification. He was shown the renewal application, and agreed that question six asked: “Do you have any long term disability to either hand, arm, foot, leg or eye”. He agreed that he had ticked “no” to that. He agreed that that answer was incorrect. When asked to explain why he had ticked “no” he said that he really simply needed the license for identification purposes, and was not planning on driving so he just ticked that box. He also stated that his eye problem did not stop him from driving effectively.

It was suggested to the plaintiff that the reason why he renewed his drivers license was because he intended, once the present litigation was completed, driving again. The plaintiff effectively denied that proposition, and reiterated that he had not driven a motor vehicle at all between the delivery of judgment by Master Harper and the handing down of the Court of Appeal judgment in May 2011. The plaintiff’s denial that he had renewed his license in 2008 because he intended driving after proceedings were completed is supported by the fact that he subsequently allowed it to lapse.

The plaintiff agreed that there was an occasion when his brother was driving a car when it broke down and he helped push the car. He said that he helped to push it two metres. He testified that the car weighed approximately 1,200 kilograms. He said that he was in pain after pushing the car.

The plaintiff was cross examined about declining an offer made by NRMA Insurance in a letter dated 18 June 2004 to arrange for a rehabilitation provider to assist him. The plaintiff stated that he followed the advice of his general practitioner in entering into a rehabilitation program with Capital Rehabilitation, which is why he did not accept the offer from the NRMA.

Counsel for the defendant then cross examined the plaintiff about a letter dated 18 August 2005 in which the defendant, based upon a report from Dr Oates, stated she would no longer provide reimbursement of the plaintiff’s medical costs. The letter goes on to make an offer of assistance from a rehabilitation provider in coordinating the plaintiff’s return to work. It was suggested to the plaintiff that this was a further offer of rehabilitation which he had refused. The plaintiff clearly did not see it that way. He said that Dr Oates had effectively told him that he did not believe that he had any injuries. Therefore, he could not trust the defendant’s rehabilitation provider. He preferred to trust his own medical advisers.

The plaintiff agreed that in 2005 Dr Veness, a psychiatrist, recommended that he have treatment with an experienced clinical psychologist for about ten hourly sessions to learn pain management strategies and to treat a depressed mood. He agreed that he did not have any further psychological treatment following that recommendation. He also agreed that Professor Champion also expressed the view that he could benefit from some psychological assistance, and he agreed that he had not sought out any further psychological assistance other than the one time through Capital Rehabilitation.

The plaintiff was also questioned about his decision not to undertake radio frequency neurotomy as recommended by Dr Speldewinde. The plaintiff stated that he was told by Dr Speldewinde that any alleviation of pain could range from a couple of days to a couple of months. He denied that Dr Speldewinde had told him that he would receive up to nine months pain relief.

The plaintiff agreed that in 2006 Professor Champion had raised with him the possibility of having an occipital nerve block. He also recalled Professor Champion telling him that the probability of a good outcome from that procedure would be in the order of 50 to 60 per cent. The plaintiff said that he did not undertake the procedure because, as he understood it, it would only have alleviated his head pain, but would not have alleviated his neck pain or related shoulder pain.

It was suggested to the plaintiff that he had been capable from shortly after the accident up until the current time of working on a fulltime basis. The plaintiff disagreed, stating that his neck pain was the cause of his inability to work. He stated that he would be happy to undertake part time work, if he could do so from home and if there were no time constraints. The plaintiff stated that he held hopes of returning to the workforce, but at the present time was preoccupied with finding some reduction in his pain.

The plaintiff was cross examined about how he had spent the approximately $95,000 which was the difference between the money his solicitors had received after judgment was handed down by Master Harper and the amount which he repaid when the appeal against that judgment was upheld in the Court of Appeal. He stated that be bought a number of items such as shutters for the windows at home, a bed, a bed head, a coffee table and he had paid $60,000 to his brother to repay him for the plaintiff’s share of household bills since the accident, and also for rehabilitation costs which had been met by his brother. The plaintiff was cross examined about his work history, and it was suggested to him that he had no motivation to work. The plaintiff denied that suggestion.

The Evidence of PavicicIvica

The plaintiff’s brother, Ivica John Pavicic gave evidence in the plaintiff’s case. Ivica Pavicic was born on 27 November 1969 and attended the University of New South Wales, partially completing a Civil Engineering Degree. He did not complete the work experience component, leaving voluntarily in the final year in order to undertake a career as a share trader. He returned to Canberra in 1996, returning to his mother’s address. Before the plaintiff’s accident Ivica Pavicic used to trade on both the Australian and American markets, so that he spent much of the day and the night working as a trader from his home office. At that time, he was sleeping about four or five hours a night.

Ivica Pavicic said that when he returned from Sydney the plaintiff was playing soccer and asked him whether he wanted to play as well. He agreed, so he and the plaintiff started training together. At that time, the plaintiff was always training, in fact training every day.

Ivica Pavicic testified that before the plaintiff’s accident the plaintiff used to do the shopping and work outside the house. Their mother did the inside work at that time. After the accident, because the plaintiff was in a pretty bad state, Ivica Pavicic took over all of the domestic work that had previously been done by the plaintiff. He decided to quit the American market. At that time he took on all the outside household duties and the shopping that had previously been done by the plaintiff.

Ivica Pavicic testified that he attended the accident scene on 10 March 2004. He noticed that the plaintiff’s jaw was trembling, and that he had blood on his lips. His hands were shaking a bit, and he was shocked. He took the plaintiff to hospital. For several days thereafter he observed that the plaintiff was in pain. The plaintiff complained that his neck kept hurting and that he felt faint and had weak spells. He recalled that the plaintiff went back to work after a few days, and he thought that the plaintiff worked for about a week.

Ivica Pavicic said that he could only recall the plaintiff having driven a motor vehicle once since the accident of March 2004, with that occurring about between six to eight years prior to the hearing.

He estimated that on average he did about 30 minutes of outside work a week which had previously been undertaken by the plaintiff, and would spend about an hour a week doing shopping which had previously been undertaken by the plaintiff. He also assisted the plaintiff with his pressure point therapy, on average about two times a day. This added up to about an hour or an hour and a half a week.

When asked of his observations of how the plaintiff spends his time, Ivica Pavicic stated that the plaintiff’s main aim is to change his position frequently. If he stays in one position too long his shoulders stiffen up, whereas if he changes position the stiffening process is delayed. He could not recall any day in the last few years on which the plaintiff had not complained of neck pain.

In cross examination Ivica Pavicic could not recall the exact period during which the plaintiff had worked at Woolworths or Coles. He said that the plaintiff had basic computer skills, sufficient for him to write out a job application.

Ivica Pavicic stated that his work as a share trader required him to work long hours in front of a computer.

He also recollected an incident in which he attempted to drive the plaintiff’s car, but it broke down close to their house. He and the plaintiff rolled it down a slope about three or four metres so that it came to rest in front of their house.

Ivica Pavicic stated that his brother paid him about $57,000 to reimburse him for household expenses and medical expenses in 2010.

THE PLAINTIFF’S MEDICAL EVIDENCE

The Reports of Dr G Griffith

A report dated 14 July 2004 from Dr G Griffith, a Consultant Surgeon, was tendered on behalf of the plaintiff. Dr Griffith noted the history of the plaintiff being injured in a motor vehicle accident on 10 March 2004. He noted that the plaintiff stated that immediately after the accident he was bleeding from the mouth and suffering from aching discomfort along the line of both sash and abdominal elements of the seatbelt. His left knee had impacted the ignition key and suffered significant contusion. Whilst at the Emergency Department the plaintiff developed pain in the left upper limb and cervical region, radiating to the axilla with dyspnoea. He suffered dental injuries as a result of impact with some part of the car during the accident, possibly the steering wheel.

Dr Griffith noted that the plaintiff returned to work approximately seven days post injury, performing what he described as standard duties – driving the forklift. He remained symptomatic with pain in his back and cervical region especially turning his head to the left side, with acute exacerbation of pain superimposed on generalised stiffness in the cervical musculature bilaterally. There was bilateral myalgia, and restricted movements globally. The plaintiff stated that his upper limbs felt weak, with some paresthesia of the hands involving all his fingers. The plaintiff took further leave from work but his symptoms continued. He told Dr Griffith that he could not drive a motor vehicle. Dr Griffith noted that the plaintiff’s cervical movements remained restricted. There was an associated cervicogenic occipital headache in the first instance, which more recently had extended almost to the frontal area.

Dr Griffith noted that the plaintiff had been unable to continue with his work. His pain radiated to the trapezius on the right side. He noted that the plaintiff had been treated with Mobic, which was ineffective. He had also been given Valium which did not help. He continued to have cervical pain at the time that he saw Dr Griffith. Dr Griffith considered the plaintiff showed typical manifestations of depression and anxiety, including irascibility, social withdrawal and a depressive sleep pattern with chronic tiredness and lethargy.

Dr Griffith noted that the plaintiff lived with his parents. He was able to groom himself. He did not drive nor did he shop. Prior to injury he played soccer six to seven days a month, and trained on a regular basis. He had since abandoned that activity. Dr Griffith noted restrictions of cervical movement, with rotation of the neck to either side occasioning complaint of pain. There was focal tenderness in the mid-cervical region of a mild degree, significantly more intense in the cervicodorsal trapezius.

Dr Griffith noted that x-rays of the cervical spine and chest revealed no significant abnormality. A CT (Computed Tomography) of the plaintiff’s cervical spine on 1 April 2004 appeared normal. He considered that the plaintiff appeared to relate in a straightforward and reasonable fashion, without inconsistency or embellishment or abnormal behaviour patterns. It was Dr Griffith’s opinion that the plaintiff suffered the following injuries at the time of accident:

1. Nervous shock – recovered.
2.Acute musculoligamentous sprain, cervical and cervicodorsal soft tissues. (resolved)
3.Acute musculoligamentous sprain, lumbar soft tissues. (resolved)
4.Contusive injury to the shoulder girdle and chest well [sic] musculature (derived from forces transmitted after he braced upper limbs). (resolved)
5.Contusive injury to tissues and structures beneath the seatbelt – resolved.
6.Traumatic blow to the temporomandibular joint – right remaining symptomatic.
7.Chipped right lower molar tooth (treated, though with toothache persisting, albeit at a lower intensity than previously. [sic]

As a consequence of these injuries at the time he was seen by Dr Griffith the plaintiff had:

1. Persistent cervical and cervicodorsal myalgia.
2. Persistent lumbar myalgia – resolved.
3.Acute adjustment disorder with elements of depression and anxiety (slowly resolving).
4.Recurrent paraesthesia in the upper limbs (largely resolving).
5.Cervicogenic headache – currently fronto-parietal. (ongoing)

Dr Griffith thought that the prognosis should be good. He thought that a rehabilitation program, including changing his medication and a program of regular stretching, was appropriate.

Dr Griffith provided a second report dated 27 June 2005. He noted complaints of ongoing pain in the neck, back and shoulders. The plaintiff advised him that he had been undertaking rehabilitation with Dr G Speldewinde, a Rehabilitation Physician. He reported considerable success with the triaxial cervical dynamometer (gravitron). He stated his movement and strength had improved in spite of the pain. He stated that testing his strength aggravated his symptoms, producing sharp pain in the cervical region. Dr Griffith noted that Dr Speldewinde had also trialled cervical injections, but that the plaintiff found these intensely painful and not particularly successful.

Dr Griffith noted also that the plaintiff had seen a psychologist through Dr Speldewinde on one occasion, but had great difficulty in relating to him. Dr Griffith suspected that the plaintiff had difficulty in comprehending abstract concepts, which is the basis of effective psychological therapy to assist with stress and pain management. Dr Griffith considered that the plaintiff was not coping well psychologically. His symptoms suggested anxiety and depression remained intrusive, with poor sleep pattern, chronic tiredness and irascibility, and frustration because in spite of his best efforts he was not improving. At this time, Dr Griffith also considered that the plaintiff was suffering a chronic pain syndrome.

By this time, Dr Griffith’s prognosis was not as optimistic as it had been in July 2004. In the absence of structural injury (which may be treated) Dr Griffith felt that the plaintiff required effective pain management.

Dr Griffith’s third and final report is dated 5 August 2006. Dr Griffith noted continuing complaints of pain in his cervical region unrelieved by any ongoing treatment. His psychological state had not improved, and was characterised by sleep deprivation, chronic tiredness, irascibility, social withdrawal and difficulty relating. He continued to take Tramadon 150 milligram SR with marginal relief of symptoms. Dr Griffith considered that the plaintiff’s prognosis must be considered guarded as he was then symptomatic for more than two years post injury, with some improvement in his symptoms but by no means resolution. He noted that the plaintiff’s symptoms remained sufficiently intrusive in his view to prevent significant or repeated physical exertion. He considered them to be incompatible with the plaintiff returning to his former workplace, or any work where labouring duties were required.

Dr Griffith thought it would be appropriate for the plaintiff to have a trial with another psychologist. He noted that, unfortunately, the plaintiff did not relate well to the psychologist in Dr Speldewinde’s practice. However, he considered that the plaintiff would profit from guidance regarding stress and pain management. He thought that not less than six sessions would be required, possibly more. He also believed that referral to a pain management clinic would be appropriate.

The Reports of Dr H Veness

A report dated 29 November 2005 from Dr Hugh Veness, a consultant psychiatrist, was tendered on behalf of the plaintiff. Dr Veness saw the plaintiff for a medico-legal consultation on 28 November 2005. He noted the history of injury in a motor vehicle accident in 2004. Dr Veness conducted a mental state examination and a physical examination. He diagnosed the plaintiff with Cervicobrachial Neuropathic Pain Disorder and Adjustment Disorder with Depressed Mood. Dr Veness noted that whiplash injury can cause pain in the neck and adjacent regions such as the head and upper limbs and upper back, which may last from hours to years. He expressed the opinion that if the pain had not recovered after two years, the likelihood is that it would continue for a lifetime. In the absence of pathological findings on formal investigation, he considered the most likely cause was pain of a neuropathic type, meaning a central (spinal cord) sensitisation to nociception. In other words, non-noxious stimuli such as pressure and muscle fatigue were transmitted as noxious or painful stimuli. Dr Veness strongly recommended that the plaintiff be assessed by a pain specialist such as Professor David Champion at the St Vincent’s Clinic in Sydney. He considered that the plaintiff was not in a fit state for rehabilitation or return to work. He thought that unless there was a surprising recovery the plaintiff would not be able to work as a storeman again and, because he was untrained in other fields, the rehabilitation process would be lengthy and difficult. He believed that the plaintiff would benefit from seeing an experienced clinical psychologist for about ten hourly sessions to learn pain management strategies and to treat his depressed mood.

Dr Veness’s second report is dated 25 July 2007. Dr Veness saw the plaintiff on 15 January 2007. He noted that since his last report the plaintiff had been seen by Professor Champion. At that time, he diagnosed the plaintiff as suffering from a Major Depressive Episode. He noted that there were factors which operated against recovery. The plaintiff responded poorly to drug treatment, tolerating few medications and developing untoward side effects to many and having exaggerated fears of addiction. He had no special education or training for future work, especially the kind of work that could be performed by a chronic pain sufferer. He noted that the plaintiff was too depressed to work and may well have cognitive impairment resulting both from the chronic depressive illness and from the chronic pain disorder. He considered the plaintiff’s prospects for future gainful employment, even on a part time basis, to be poor. Dr Veness recommended psychometric testing of cognitive function by an experienced neuropsychologist. He agreed with Professor Champion that psychotherapy by an appropriately experienced and trained psychologist would be of value, however the plaintiff did not have the resources to fund that form of treatment. Dr Veness believed that further gains may be made if the plaintiff was persuaded to take both analgesics and antidepressants in sufficient dosage. However, he did not consider that he would be likely to improve sufficiently to become employable.

The Reports and Evidence of Professor G D Champion

On 29 July 2006, Professor Champion wrote a report to Dr Veness. Professor Champion noted the history of a motor vehicle accident on 10 March 2004, and that the plaintiff had been healthy and active prior to that accident. On examination of the plaintiff, he noted pain related behaviour during the history, particularly the apparent need for the plaintiff to move his head and neck around quite frequently. He noted that a CT of the cervical spine taken on 1 April 2004 was normal. In his diagnosis and assessment of the plaintiff, Professor Champion noted that since the motor vehicle accident of 10 March 2004 the plaintiff had experienced severe chronic pain which continued to be unrelenting in his cervical spine. He thought that it was a multi-level condition arising principally from C4/5, C5/6 and C6/7. He had deep somatic referred pain to the suprascapular regions. Professor Champion noted that there was not much deep secondary allodynia nor any cutaneous allodynia which would reflect major central sensitisation of nociception, although it was inevitable that there must be an important degree of central sensitisation of nociception to account for the ongoing spontaneous and evoked pain. He considered that the plaintiff had cervicogenic headaches associated with bilateral occipital tenderness. He thought that there may be discogenic cervical spinal pain, and recommended an MRI examination.

Professor Champion also felt that there was considerable functional overlay in that the plaintiff felt unable to sit still and to concentrate, and noted that this was occurring on a background of impaired sight, such that it was difficult to sustain reading. He noted that the plaintiff was not driving, and had not done much driving since the accident. The plaintiff had expressed the belief that he was unsafe when driving.

Professor Champion’s next report is dated 9 September 2006, and is also directed to Dr Veness. He noted that Norspan patches had not worked. Professor Champion noted that he had advised the plaintiff that he would be suitable for occipital nerve blocks, particularly on the left, because of intermittent pain radiation on that side to his left eye. He suggested that the probability of a good outcome would be of the order of 50 to 60 per cent. Dr Champion considered that the best analgesic for the plaintiff was Tramal. He noted that non-steroidal anti-inflammatory drugs had not been beneficial. Dr Champion noted that the plaintiff used acupressure-trigger point therapy and found that to be beneficial. He stressed to the plaintiff the importance of an exercise regime, and thought that the plaintiff would benefit by being given a greater sense of purpose.

Professor Champion’s next report is dated 7 March 2008, and is addressed to the plaintiff’s solicitors. In this report Professor Champion provided background information to the plaintiff’s solicitors concerning Chronic Pain Syndromes. In this letter Professor Champion said:

The reality is that many people after injury experience acute pain which goes on to chronic pain, and the reasons for this include at times continued nociception (pain generation and the neurobiology which underlies the pain experience) from the damaged region, sensitisation of nerve endings, particularly those subserving pain in the injured region and their central nervous system connections, and also psychosocial influences.

Professor Champion referred to a number of journal articles relating to chronic pain before considering the implications regarding the plaintiff. Professor Champion noted that before he saw the plaintiff, he had symptoms consistent with a peripheral neuropathic pain syndrome involving pain and paraesthesae referred to the upper limbs. However, by the time Professor Champion saw him there were no peripheral neuropathic symptoms and signs. He had residual disorder of somato-sensory processing on examination. Professor Champion said this is a characteristic feature of chronic whiplash-associated disorder and reflects the abnormal central nervous system pain processing.

Professor Champion’s next report is dated 8 June 2008, again addressed to the plaintiff’s solicitors. He noted that the plaintiff stated that his symptoms and disability had not changed much since he was last reviewed in September 2006, and the plaintiff believed that he was somewhat less active than he had been. The most important ongoing set of symptoms were pains of various descriptions including the back of his head, higher posterior crown pain, and pain in both supracapular regions. Professor Champion conducted a physical examination, and commented that the plaintiff presented in a reasonable manner. He considered that his findings at that time, allowing for slight variations in the examination technique, were comparable with those of July 2006. Professor Champion believed that the stability of signs supported the plaintiff’s claim of stability of symptoms and disability. Whilst the plaintiff reported pain related disability somewhat higher than he would commonly find with this set of physical signs, he noted that there is by no means a strong correlation between findings on examination and reported pain related disability. Professor Champion considered whether the plaintiff’s reporting was reliable, and noted that he had no evidence that he was not reporting reliably or validly. The fact that the plaintiff was rather unreactive to a range of potentially provocative stimuli during his examination suggested to Professor Champion that the plaintiff was probably reporting reliably. Professor Champion’s diagnosis remained one of whiplash associated disorder of the cervical spine with multi-level origin of pain and deep somatic referred pain to the suprascapula regions as well as cervicogenic headaches. He noted that the plaintiff continued to experience, at a fairly stable level, emotional responses including frustration, anger and some depression of mood.

Professor Champion’s main concern about the plaintiff was that, having been daunted by adverse responses to exercise regimes, he was spending a lot of his time resting, and did not have much reason to get up and going. He thought that it would be very difficult for him to sustain his previous work as a storeman/driver, and thought that the plaintiff should be vocationally assessed and encouraged to train in some new vocational direction of a kind that would not be unduly physically stressful or demanding. Any new work role would need to be commenced gradually, for example two or three hours twice or three times a week and upgraded under supervision. Professor Champion stated that the prognosis in the longer term was likely to be more of the same, probably with a gradual trend to slight improvement, but susceptibility to aggravation on relatively minor mechanical provocation.

The next report from Professor Champion is dated 15 August 2011, and is again addressed to the plaintiff’s solicitors. Professor Champion reviewed the plaintiff on 9 August 2011. The plaintiff indicated that his situation had been complicated by a further motor vehicle accident on 17 June 2010. After the accident the pain in his neck had increased, and he was examined at the Canberra Hospital. The exacerbation of his symptoms lasted about three weeks. The plaintiff told Professor Champion that his neck and referred pains had stabilised over the last three years, overall at a level where there were fewer exacerbations than when he last saw Professor Champion. The plaintiff stated that the reason for this was that he had not been provoking his neck so much in the instructed exercises and activities. The plaintiff advised Professor Champion that he obtained short term relief of between 15 and 30 minutes from use of an acupressure device called a Myofascial T-bar. He also got slight benefit from Tramal 150 milligram for analgesia.

The plaintiff told Professor Champion that he had not been able to get back into the workforce, because every form of employment for which he was qualified involved activities which aggravated his pain. Furthermore, the plaintiff still had trouble sleeping. Professor Champion noted that the plaintiff continued to live in his mother’s home, and contributed to the housework as much as he could. On better days he liked to read, and occasionally he went to the movies. Sometimes he did things on the computer, he walked regularly for exercise, his social outings remained very restricted.

Professor Champion reviewed a number of medical reports provided to him by the plaintiff’s solicitors. He reviewed the reports of Dr Griffith, and noted his diagnoses including Chronic Pain Syndrome. He also referred to a report of Dr Tania Lioulios, Neuropsychologist, dated 9 October 2007. She had concluded that the plaintiff had psychological diagnoses of severe chronic pain disorder with adjustment difficulties, major depressive disorder with features of traumatic anxiety, and cognitive disorder. She considered that the plaintiff’s chronic pain, depression and cognitive deficits were formidable barriers to full recovery, and there were implications that he would struggle with vocational training.

Professor Champion referred to a report of Dr Christopher Oates, Occupational Physician, dated 13 July 2005. He noted that Dr Oates commented that there was evidence of symptom exaggeration but could not be sure whether this was conscious or unconscious. He based this on the plaintiff’s normal range of movement and lack of pathology. Professor Champion thought that this was not a valid basis for such an interpretation, but agreed that there was a relative disproportion between symptoms and findings on examination.

Professor Champion referred to a report by Alison Figg, Physiotherapist on behalf of the defendant, noting that Ms Figg considered that the plaintiff should be capable of returning to sedentary, semi sedentary and light manual occupations. Professor Champion assumed that Ms Figg had not had the opportunity to read the neuropsychology assessment.

Next, Professor Champion referred to a report from a clinical neuropsychologist, Dr F Roldan dated 31 August 2007. Dr Roldan noted that on testing there were some results consistent with a conscious over report of physical symptoms and disability, but interpretation of that required assessment of the physical symptoms/disorder. He concluded that the plaintiff’s condition was probably genuine, and that he may have benefited from earlier psychological intervention.

Professor Champion also noted that on 1 December 2007 Dr Roldan wrote a further report, which Professor Champion believed was clearly influenced by Dr Oates report, stating that in the light of the absence of accident related pathology he considered that the test indicators of malingering acquired greater relevance in the process of explaining the plaintiff’s complains of ongoing physical disability. Professor Champion commented that chronic pain and its related disability is not generally proportional to pathology, and the absence of pathology does not rule out genuine chronic pain-related disability. He considered Dr Roldan’s interpretation to be a false one. Professor Champion further commented that chronic pain is driven by post traumatic changes in neurobiology and by psychological factors.

In his assessment Professor Champion said that at face value the plaintiff had chronic pain related disability such as to prevent him returning effectively to the workforce. Professor Champion did not have any doubt that the plaintiff did have chronic pain related disability. The diagnosis was whiplash associated disorder of the cervical spine with deep somatic referred pain, cervicogenic headaches, not complicated by radiculopathy, but with deep somatic referred pain particularly to the suprascapular region.

Whilst acknowledging that the plaintiff’s presentation was somewhat unusual, Professor Champion commented that the nature of chronic pain is such as not to require evidence of post traumatic pathology on standard imaging investigations to support or refute the reality of the condition. He expressed the opinion that assessing chronic pain-related disability involves professional and skilled psychological appraisal as well as a pain-oriented physical examination which assesses neurobiological aspects. He noted that Dr Lioulios had assessed the plaintiff as having considerable psychological consequences of the accident and of his chronic pain, but this had been challenged by Dr Roldan.

He noted that the validity of the plaintiff’s reporting was supported by a plausible and consistent history, the somatosensory test findings and by impressive consistency between examinations. Professor Champion suspected that the psychological consequences of injury and of chronic pain could well be outweighing the neurobiological process of central sensitisation of nociception and the cerebral pain matrix. If the plaintiff were to be observed to be performing activities inconsistent with his stated level of disability, then the legitimacy of his disorder could be challenged. Otherwise, Professor Champion believed that there was no justification for any suggestion that he was malingering or inappropriately exaggerating disability. He believed that a full understanding of the plaintiff and his disability and handicap for work was out of reach of adequate understanding.

Professor Champion expressed the opinion that if the plaintiff had access to an enlightened rehabilitation specialist, working with him gradually and patiently, finding tasks he could do and achieving learned optimism by shrewd goal setting, then he might well be able eventually to re-enter the workforce. However, he also expressed the view that after seven years the plaintiff had had so many setbacks that he may have lost hope and motivation about returning effectively to the workforce. His expectation was that the plaintiff would have lifelong pain related disability, but not necessarily at the present level of severity.

The final report from Professor Champion is dated 15 November 2012, once again directed to his solicitors. Professor Champion examined the plaintiff on 14 November 2012. He noted that there has been no events such as further injury, illness or new therapeutic initiatives. The plaintiff stated that his pain remained essentially unchanged since the last report. The plaintiff described pain which typically gradually increased in his neck during the day and extended to the suprascapular regions, and also pain at the back of his head. The pain made it difficult for him to get off to sleep, but when he did he usually slept well. The plaintiff felt the need to continually change positions otherwise the pain worsened.

The plaintiff stated that on a typical day he would receive trigger therapy early, either by a family member or his own hands. He would often repeat this procedure later in the day. He took Tramal SR 150 mg on some mornings. His mother has been ill lately, and his brother helped a lot around the house. He did not have much breakfast. He reads, pottered around in some local shops, usually spending most of the day at home sitting, wandering about or lying on a couch. He spent some time on a computer. He tried to do some housework, but did not pursue previous interests such as sport and fishing. He was not currently pursuing any learning.

Professor Champion noted that the plaintiff stated that he hoped that he would be able to return to the workforce. He said that it was very much dependent on improving control of his pain. Professor Champion suggested that he try a little light part-time work with a view to gradually increasing and achieving therapeutic benefit, but the plaintiff stated that he keeps testing his capacity with housework and since that did not seem to be getting any easier he did not feel that he could manage any worthwhile work at that time. In addition the plaintiff stated that problems with his vision made office work problematic.

The plaintiff was examined by Professor Champion on 14 November 2012, and he thought that there had been some improvement by way of minor lessoning of the physical signs since his previous examination in August 2011.

Professor Champion commented on the report of Tom Sutton, a Psychologist, dated 22 June 2011. He noted that Mr Sutton is a respected clinical psychologist. He was in agreement with Mr Sutton about difficulties in understanding adequately the plaintiff’s chronic pain-related disability, but was cautious about Mr Sutton’s interpretation of a “somatoform disorder, possibly a conversion disorder”. Professor Champion stated that the chronic pain experience (assuming the reporting is reliable) relates to the so-called pain matrix in the central nervous system, where the neurobiological (nociception-related) inputs integrate with psychological processes. He was quite sure that the plaintiff had some neurobiological input from his cervical spine, a low grade tonic contribution to the pain matrix. He stated that people with chronic pain vary from dominant neurobiological inputs with fairly normal psychological responses through to dominant psychological responses with little neurobiological/nociceptive input. He stated that the argument with respect to the plaintiff had favoured dominant psychological processes, which might well be valid because the best insight into sensitised nociception is the clinical somatosensory testing process and those findings were relatively modest. Professor Champion noted that Mr Sutton identified that the plaintiff experienced minor depression and that he has a significant number of pain related beliefs extending into the clinically rare extremes, meaning that he had “excessive illness-focussed beliefs and insufficient wellness-focussed beliefs about his pain”.

In his assessment of the plaintiff Professor Champion expressed the opinion that the plaintiff had to be assessed from a pain medicine view point, since pain was the dominant symptom, the dominant reason for disability and the dominant reason that he said that he was unable to work. Whilst the plaintiff had not much evidence of pathology, there may be significant micro-pathology as a source of chronic nociceptive inputs into the central nervous system. Insight into the neurobiology, referring particularly to central sensitisation of nociception, showed only relatively mild sematosensory test responses to cutaneous and deep, including spinal, stimuli. These physical signs had actually improved over the last year or so. Professor Champion generally agreed with the report of Mr Sutton, and in particular the view that the motor vehicle accident was necessary in the development of the somatoform disorder and hence the pain related disability, but was not sufficient to explain it. However, Professor Champion felt that Mr Sutton was putting undue weight on psychological factors without considering the essential neurobiological factors in the chronic pain experience.

In summary, Professor Champion thought that the plaintiff had a chronic whiplash-associated disorder of the cervical spine with pain related disability with partial handicap for work. He thought that it was very important that notwithstanding the plaintiff’s setbacks, he persevere with exercises for his neck and that he be involved in vocational rehabilitation. He expressed the view that if the plaintiff could be induced to acquire interests, a sense of purpose and a direction towards training and employment, then he might well gradually improve over the years. He expected that he would, however, remain vulnerable to biomechanical or psychological aggravation.

Dr Champion also gave oral evidence and was cross examined over the telephone. He stated that for many years he had carried on a consultant practice in the area of pain medicine. He was qualified in both rheumatology and pain medicine, although in latter years he had concentrated on pain medicine and that was his principle research area. Over the years he had developed techniques for checking the validity of complaints made by patients complaining of pain. The process involves assessing pathology, the window into determination of neuro-biological processes through clinical stamino-sensory testing and an understanding of the psychology which is very necessary in chronic pain. It also involves assessing the medical reports and the consistency of the patient’s reporting of the history and experiences with that recorded by others. In the plaintiff’s case he believed that there had been a very high level of consistency of reporting over the years since 2006.

Dr Champion first saw the plaintiff in 2006 when he was referred for treatment purposes. Subsequently he became involved for medico-legal purposes. Dr Champion was taken to his report of 8 June 2008 and asked about his finding that responses to pressure stimuli were abnormal in the suprascapular regions with signs of mild deep secondary allodynia. Dr Champion stated that this clinical testing was coerced with response to repetitive deep pressure testing where, when there is substantial central sensitisation of nociception switched on pain processing in the central nervous system, it’s characteristic to have an increase in the report of pain centrally over about 10 repeated pressures, and some radiation and abnormal resistance in after-sensation. In the plaintiff’s case it was mainly just deep tenderness, without much additional response to repetitive stimuli. Dr Champion said that this has been an essential feature of the plaintiff’s case, which he found a little unusual, in relation to his reporting of his severity of pain related interference with activities generally. He expressed the opinion that the plaintiff’s level of disability was somewhat higher than he would have expected for someone with mild to moderate physical signs on examination.

Dr Champion stated that it was his opinion that while the plaintiff reports considerable pain related disability with an inability to work, he is really very unreactive, even to quite potentially painful stimuli on examination, with no indications whatever of exaggerated or inappropriate responses. That, together with the level of consistency over time, in Dr Champion’s opinion supported the plaintiff’s claims.

Dr Champion was asked to explain the concept of central sensitisation of nociception. He said that:

this is the neurobiological process that underlies the chronic pain experience. In an injured region such as the cervical spine, the indications are that there are low grade tonic impulses from the sensory endings, particularly those related to nociception, the nerve function related to the pain experience, with tonic impulses into the cervical spinal cord. In the dorsal form of the spinal cord the higher order neurons are sensitised, so that not only will they respond in an exaggerated manner to minor impulses such as provoked by movement from the cervical spine, but also fire off spontaneously.

Professor Champion continued that the so-called nociceptive system integrated multiple sensors in the brain with psychological processes. These regions of integration are referred to as the pain matrix and explain the inseparable relationship between those neurobiological inputs and the psychological processing, the interpretation, the understanding, the cognitive practice and emotional response. To have a chronic pain experience there virtually has to be central sensitisation of nociception.

The plaintiff’s counsel took Professor Champion to the report of the psychologist, Mr Sutton. Professor Champion took issue with the proposition raised by Mr Sutton that the plaintiff may have a conversion disorder. He was more receptive to the concept that the plaintiff may have a somatoform disorder. In discussing the concept of somatoform disorders, psychological processes and the experience of pain, Professor Champion made some comments which I find to be very helpful:

It might be best I put it like this, at one end of the spectrum you get overt pathology with prominent features, neuro-biological features, consistent with sensual sensitisation of nervous perception and the psychological responses can be assessed as within the normal psychology of pain.
At the other end of the spectrum there is much more prominent psychological processing overtly assessed and not so much evidence of pathology or neuro-biological input and it would be fair to assess all things to consider that Mr Pavicic is nearer that latter end of the spectrum. He is not right off the end of the spectrum if it’s somatoform disorders [sic]. I doubt if many people working in pain medicine – simple pain medicine would accept this. The problems that psychologists have is that they don’t do physical examinations so they don’t tap into kind of indications of disorder neurobiology.

Counsel for the plaintiff then questioned Professor Champion about the decision of the plaintiff in 2005 not to undergo radio frequency neurotomy. Professor Champion thought that it was probably a perfectly rational decision, particularly in retrospect. He stated that patients generally put a greater value on safety and risk than do doctors, and stated that it is only a small percentage of patients who truly get benefits from radio frequency denervation, and it works best of all if there is only a single level of involvement. In this case the plaintiff’s cervical spine disorders involve multiple vertical levels and he doubted whether the plaintiff would have experienced a substantial positive response.

Finally, Professor Champion stated that he did not expect the plaintiff to make a full recovery, and did not expect that resolution of the current litigation would result in the plaintiff becoming markedly better. He thought it likely that the plaintiff would have long term disability with gradual slight improvement.

In cross examination, Professor Champion agreed that when he saw the plaintiff on 28 July 2006, the plaintiff told him that as at April 2004 after the accident he was barely able to move his neck. Counsel for the defendant then took Professor Champion to a number of physiotherapy reports suggesting that in 2004 the plaintiff had rotation to the right and left of between 70 and 80 degrees. Professor Champion agreed that there was a disparity between the statement made by the plaintiff to him about the level of his disability in 2004, and the recorded observations of the physiotherapist. Professor Champion expressed the opinion that the plaintiff may have been having good days and bad days at that time, or may simply have muddled his history.

It was suggested to Professor Champion that x-rays and CT scans of the plaintiff’s cervical spine showed no abnormality. Professor Champion agreed, stating that it demonstrated no macro-pathology of a kind that is visible on imaging currently available.

Professor Champion was taken to that part of his report in which he described the cervicogenic headaches associated with bilateral occipital tenderness described by the plaintiff. It was suggested to Professor Champion that the plaintiff’s complaints were purely subjective. Professor Champion stated that the plaintiff reported headaches at the back of his head and had an appropriate kind of tenderness in the appropriate site, and it was a believable response to examination. Professor Champion agreed that in his report he had thought that an occipital nerve block may have been appropriate, but then commented that the psychogenic headaches are only part of the planitiff’s problem. The other part is pain referred from the mid cervical spine to the top of his shoulders.

The defendant’s counsel asked Professor Champion whether it would have been of benefit to the plaintiff to have been referred for further psychological treatment in July 2006, and Professor Champion agreed, but noted that some years later a psychologist, Tom Sutton, came to the conclusion that psychological guidance probably would not help the plaintiff very much. Professor Champion stated that he thought that Mr Sutton was right on that issue. He went on to say that he does not believe that anyone really understands the plaintiff and why he cannot work. He said that before the accident the plaintiff was playing and practicing football six days a week and was generally fit. He was working in a physically arduous capacity. He felt that the plaintiff clearly took pride in his physical prowess, but he lost that as a result of the motor vehicle accident in 2004 and that was one of the big psychological impacts on his life. Subsequently the plaintiff had not related well to those who were providing treatment to him, and became disillusioned when treatment did not work and in fact increased his symptoms.

Professor Champion stated that his experience with occipital nerve blocks was that the results ranged from disappointment to wonderful relief and sustained relief. The ability to predict the outcome was modest. It was suggested to Professor Champion that the worst outcome from the plaintiff undergoing occipital nerve blocks would have been the procedure not providing any relief. Professor Champion agreed with that, but added that it would have been a failed procedural intervention which could have compounded the plaintiff’s negative perspective with respect to treatment options. In that regard Professor Champion stated that his observations of the plaintiff were that he lacked motivation and interest. He was passive, and seemed to be rather defeated by his experience. He accepted that if the plaintiff were to undertake online courses at the Canberra Institute of Technology in an area which interested him that could assist in providing him with motivation, and in addressing his chronic pain syndrome.

It was suggested to Professor Champion that he had accepted the plaintiff’s complaints of pain at face value. Professor Champion did not agree and said that he had considered clinical evidence, physical signs, how the complaints related to other people’s assessments and reports, particularly contemporaneous reports of examination. He also considered whether there was exaggeration or inappropriate responses. He considered that the physical signs with respect to the plaintiff did provide strong support. He accepted that the plaintiff had psychological input, but expressed the opinion that nobody could refute the genuineness of the plaintiff’s reported pain and disability.

The Reports of Dr P Leerdam

A report from Dr Patrick Leerdam, the plaintiff’s general practitioner, dated 2 November 2005 was tendered on behalf of the plaintiff. Dr Leerdam stated that the plaintiff had been attending his practice at Chifley since the 1980s, although Dr Leerdam only commenced work at that practice in February 1991. Dr Leerdam has been the plaintiff’s family doctor since that time. Dr Leerdam noted that the plaintiff attended the Chifley practice on 24 occasions between 23 March 2004 and 4 October 2005. When he presented on 23 March 2004 he reported that he had been involved in a motor vehicle accident on 10 March when the vehicle he was driving had collided with another vehicle, resulting in him being taken to the Emergency Department at the Canberra Hospital. He reported suffering injuries to a right upper molar, bruising and soreness in the left hip, sore right ribs initially with pain, then developing in the left ribs which was ongoing, a laceration to the right knee and neck pain and soreness with weakness in the arms. Examination on 23 March 2004 revealed little apart from tenderness in the neck muscles and reduced range of movement and power in the upper limbs. Dr Leerdam considered that the history provided by the plaintiff was consistent with the injuries described and his examination. The plaintiff initially attended physiotherapy for his neck pain, but felt that this caused his symptoms to get worse rather than improve. He persisted with treatment but it did not improve his symptoms. He became quiet agitated and depressed because of his lack of progress and, because of ongoing symptoms, had to give up work. The plaintiff had continued to complain of even the most trivial of activities causing exacerbations of his pain. Dr Leerdam expressed the belief that the plaintiff had suffered a whiplash injury, which had developed into a chronic pain syndrome affecting his neck and upper limbs. His prognosis remained guarded in light of his poor response to physical and drug therapy.

Dr Leerdam’s second report is dated 2 September 2007. Dr Leerdam noted that the plaintiff attended the Chifley practice on 17 occasions between 8 December 2005 and 21 August 2007. He noted that plaintiff had little to find in the way of positive findings on physical examination, with full range of movement of the cervical spine and no abnormal neurological findings. Dr Leerdam noted that the plaintiff’s neck pain and headaches which had been persistent since the accident appeared to be aggravated by a variety of triggers, including changes in ambient temperature, the wearing of a tight baseball cap, lifting of heavy objects and holding his hands above his head. He complained that the rehabilitation program that he underwent served only to worsen his symptoms, as did the exercises for strengthening his neck muscles as provided by his physiotherapist. He believed that the plaintiff suffered a whiplash injury in the motor vehicle accident on 10 March 2004, and had subsequently developed chronic neck pain and headaches, which Dr Leerdam believed were part of a regional pain syndrome. He considered that the plaintiff’s prognosis for full recovery was poor due to the length of time the condition had persisted as well as the co-morbid psychological issues that have developed as a result of the plaintiff’s frustration at not being able to have a definitive diagnosis or treatment for his problem.

Dr Leerdam was not required for cross-examination.

The Reports of Dr T Lioulios

The next set of reports relied upon by the plaintiff were provided by Dr Tania Lioulios, a Neuropsychologist. Her first report is dated 9 October 2007. Dr Lioulios completed a comprehensive assessment of the plaintiff over seven hours on 31 August and 1 September 2007. She based her findings on test results as well as her observations and notes made during the clinical interview. Dr Lioulios also noted that she had been provided with reports of Dr Veness dated 29 November 2005 and 25 July 2007. Dr Lioulios concluded that the plaintiff’s overall profile was consistent with the following diagnostic profiles:

·Severe Chronic Pain Disorder with injury adjustment difficulties
·Major Depressive Disorder with features of traumatic anxiety, low self esteem, agitation, and low frustration tolerance
·Cognitive Disorder NOS (reduced encoding, slowed motor speed, left brain dorsolateral prefrontal executive impairment, such as reduced access to and use of semantic knowledge stores, reduced initiation of verbal response, low abstract and social reasoning, reduced planning and reduced cognitive flexibility.

Dr Lioulios stated that the plaintiff’s chronic pain, depression and cognitive deficits are formidable barriers to his full recovery. She believed that even if he is provided with adequate treatment and vocational rehabilitation assistance his prognosis for re-training to a non-physical non-labouring vocation is guarded given his previous experience and skills are not transferable, and due to encoding difficulties it would be likely to take him many years to successfully retrain and find appropriate employment. She considered that, overall, the implications are that he will struggle with vocational training, and he needs to find a vocation which does not require social reasoning or abstract problem solving. She considered that the plaintiff would be slow, and find it difficult, to switch his focus between tasks, and once he is retrained and ready for a work trial he would need supervision by a person with good interpersonal skills and an understanding of the impact of chronic pain, depression and cognitive disabilities. She thought that such a workplace would be a challenge to find.

Dr Lioulios recommended that the plaintiff undergo long term and intensive multi-disciplinary intervention to adequately address his disabilities, including continuation of medical rehabilitation and pain management, emotion regulation training by a clinical psychologist for his agitation and mood disturbance, cognitive behavioural therapy and acceptance therapy for depression and adjustment difficulties with a clinical psychologist, relaxation training for his anxiety and traumatic stress symptoms with a clinical psychologist, vocational rehabilitation and re-training once his condition had been adequately treated and education about self management of his emotional, pain and cognitive disabilities with a neuropsychologist.

Dr Lioulios’ second report is dated 3 May 2008. It is clear that prior to providing this report, Dr Lioulios had been provided with copies of reports from a psychologist retained by the defendant, Dr F Roldan. There was significant disagreement between Dr Lioulios and Dr Roldan about which tests were appropriate to be administered to the plaintiff. I will deal with this in somewhat greater detail when I consider Dr Roldan’s reports. Dr Lioulios reiterated her findings that the plaintiff suffered Severe Chronic Pain Disorder with injury adjustment difficulties, a major depressive disorder with features of traumatic anxiety, low self esteem, agitation and low frustration tolerance, and a cognitive disorder.

Dr Lioulios died before the hearing, so that she could not be cross-examined.

The Reports of Dr A Nathan

On behalf of the plaintiff a report dated 17 March 2004 from Abi Nathan, a Dentist at Weston Creek Dental Care, was tendered. Dr Nathan stated that she saw the plaintiff on 12 March 2004 after a car accident two days before. On examination the plaintiff had a bruise on the lower left lip on its internal aspect. He also had a chip on an upper right tooth. All his front teeth responded to tooth vitality testing. She noted that these teeth could become non vital in the future, but this could not be predicted. The teeth did not have any root fractures and a filling was placed on the fractured tooth.

Dr Nathan’s second report is dated 19 July 2004 and notes that she saw the plaintiff for review on 21 March 2004 with sensitivity on his tooth. Application of desensitising material seemed to settle the pain at that time.

Dr Nathan was not required for cross-examination.

The Report of Dr R Rider

Dr Robert Rider, who was also a dentist at the Weston Creek Dental Care practice, provided a report dated 19 July 2004. Dr Rider first saw the plaintiff on 26 March 2004, after the motor vehicle accident. At that time an upper right premolar was tender to pressure. A small filling had been placed on that tooth previously by Dr Nathan. The plaintiff complained that the tooth was tender for up to 20 minutes after chewing. The tooth required extra anaesthetic during treatment. Dr Rider thought that may be indicative of a dying pulp. He suggested that root canal treatment may be required. Subsequently the plaintiff returned one hour later in pain. This was treated with analgesics. Dr Rider next saw the plaintiff on 6 April 2004 when the tooth was improving and was only tender every few days. He next saw the plaintiff on 6 July 2004 when the tooth was responding normally to temperature but pressure on the buccal cusp still initiated tenderness. A mesial/distal midline fracture was present in the tooth which needed stabilisation with a porcelain crown. Dr Rider was unable to say whether root canal treatment may be required in the future. Future treatment costs would be $1,050 for a porcelain crown and, if needed, specialist endodontist treatment.

Dr Rider was not required for cross-examination.

The Reports and Evidence of Mr T Sutton

The plaintiff was referred by his lawyers to Mr Tom Sutton, a clinical psychologist. Mr Sutton conducted psychological testing on the plaintiff. He concluded that there was no obvious cognitive decline, nor was the plaintiff reporting unusually high everyday cognitive problems. He considered that the plaintiff had a somatoform disorder, and possibly a conversion disorder. He stated that the plaintiff exhibited maladaptive pain coping strategies, excessive use of illness focused pain beliefs and insufficient adaptive beliefs and techniques to manage pain. He considered that the plaintiff displayed abnormal illness behaviour. Mr Sutton considered that the plaintiff was resistant to any form of psychological treatment or interventional management. His attitudes and behaviour reinforced his illness preoccupation and pain behaviours. Mr Sutton also thought that the plaintiff had mild depression in the form of affective (sadness) and physiological symptoms. He noted that there were no indications on validity scales in the test results that the plaintiff’s somatoform disorder was consciously produced as a malingering exercise. He did not know the cause of the plaintiff’s somatoform disorder, but doubted that it was simply the motor vehicle accident and its consequences, although the accident may be contributory. He believed that the plaintiff was converting a number of longstanding emotional issues into bodily complaints. There was no treatment that Mr Sutton could recommend at that time.

The Report of Dr R Lewin

On behalf of the defendant a report from a psychiatrist, Dr Lewin, dated 16 October 2012 was tendered. Dr Lewin examined the plaintiff on 11 October 2012 for approximately an hour and a quarter. On the basis of his examination, and his review of the reports available to him, Dr Lewin concluded that at an earlier time the plaintiff had a depressive reaction. By the time he came to examine the plaintiff in October 2012 that condition had remitted. He concluded that there was no diagnosed psychiatric condition at that time. The plaintiff told him that he suffered pain, but Dr Lewin had no objective way of testing that history.

The Vocational Capacity Centre Report

On behalf of the defendant the plaintiff was assessed on 10 and 11 July 2007 by a physiotherapist, Ms Alison Figg at the Vocational Capacity Centre in Sydney. The overall assessment concluded that the plaintiff should be capable of returning to sedentary, semi-sedentary and light manual occupation. Self limiting behaviours during the assessment prevented accurate determination of whether the plaintiff could return to the manual handling demands of his pre injury occupation of Storeman. Ms Figg noted that the plaintiff presented with an unfriendly nature, with a generally defensive and negative approach. He appeared to lack motivation to return to appropriate work as soon as possible, however she thought that work motivation may have been a longstanding problem for the plaintiff. His general demeanour was that of a hapless person who sees no way out of his problems either through his own efforts or those of others. As a result he did not take advise freely, and gave up very easily on recommendations made to him.

The Evidence of Dr G Speldewinde

The defendant also called evidence from Dr G Speldewinde, a consultant in rehabilitation medicine and pain medicine. He initially saw the plaintiff in a treating capacity in August 2004 when he embarked on a rehabilitation program at Capital Rehabilitation. Initially, the program he prescribed for the plaintiff involved physiotherapy and exercise therapy. The plaintiff also saw a psychologist once.

It was put to Dr Speldewinde that records revealed that both the plaintiff’s range of movement and strength had improved in the period September 2004 to March 2005 when the plaintiff attended his program. Dr Speldewinde agreed, but added that an improvement in functioning did not mean that his pain had resolved.

Dr Speldewinde agreed that in April 2005 he recommended that the plaintiff consider radio frequency neurotomy to at least the C 3/4 and possibly C 4/5 zygapothysid joints, based on earlier procedures that indicated damage to those joints. After discussing the potential risks as well as the benefits, the plaintiff decided not to proceed.

Dr Speldewinde explained that potential, albeit rare, complications include the risk of bruising, bleeding, infection, neuralgic pain, spinal cord damage or spinal nerve damage. The potential benefit could be complete relief of pain for “ 6, 12, 18 months”. Such a period may have provided the plaintiff with a window of opportunity for him to return to work.

Dr Speldewinde said that the plaintiff always presented as “in a rut”, and was unable to change his thinking about his pain and his prospects for recovery. Dr Speldewinde speculated that this may be a result of the plaintiff’s “personality style or concrete thinking or maybe lower than average IQ”.

It was put to Dr Speldewinde that Professor Champion has recorded slight improvement in the plaintiff’s condition between 2008 and 2011, and again between 2011 and 2012. Dr Speldewinde said that one might expect a steady improvement in most injuries, with recovery sometimes taking months and sometimes decades.

In cross-examination Dr Speldewinde agreed that the plaintiff had a personality style that made it difficult for him to accept his pain and get on with his life. With respect to the proposal that the plaintiff undergo radio frequency neurotomy, Dr Speldewinde said that the plaintiff’s personality style played a part in his decision to decline the process as he could not see that it would be helpful to him if it was not going to cure him.

Dr Speldewinde thought that the plaintiff’s prospects of recovery were poor.

The Reports of Ms C Miller

Finally, the defendant tendered two reports from Ms Catriona Miller, an Occupational Therapist, dated 27 September 2007 and 3 October 2007. Ms Miller did not actually see the plaintiff, but summarises a number of earlier medical reports and raises a number of questions for consideration on the part of those representing the defendant. It is difficult to glean anything useful from these reports.

THE PLAINTIFF’S CREDIBILITY

Counsel for the defendant relied upon the plaintiff’s deliberately incorrect answers on his driver’s license renewal in 2008 as detrimentally affecting the plaintiff’s credit. It is true that he answered “no” to the question “Do you have any long term disability that could affect your control of a motor vehicle?”, and the plaintiff himself accepts that his answer was incorrect. That is a matter which must be taken into consideration in determining the plaintiff’s overall credibility.

However, it is also relevant to consider his explanation. The plaintiff said he had no intention of driving a motor vehicle when he applied for renewal of his license, and he only wanted the license as a means of identification. This explanation has a ring of truth to it, particularly as there is no evidence that the plaintiff has driven a motor vehicle since 2004, except on the one occasion he volunteered. His evidence in that regard is corroborated by that of his brother.

I am satisfied on the balance of probabilities that the plaintiff has not driven a motor vehicle since the accident in 2004, except on the occasion referred to in his evidence. I am satisfied that in answering falsely as he did in his application for renewal the plaintiff was not seeking to obtain a license for the purposes of driving, but rather as a means of identification. This does not mean that his false answer is irrelevant to his credibility, as it is still an example of the plaintiff being untruthful in order to get something he wanted. However, his dishonesty is perhaps not so great where his response was not for the purposes of concealing his disability, which may have made it unsafe for him to drive, for the purpose of being able to drive.

The plaintiff agreed that he had not given evidence at his first hearing before Master Harper that he only wanted to obtain the license as a means of identification. The evidence given by the plaintiff on that occasion was not tendered in this hearing, so that I do not know precisely what questions were asked of him. Additionally, his evidence that he did not know it was “going to be such a big deal” struck me as consistent with his personality, having a tendency to focus on those things he considers to be important.

Counsel for the defendant also suggested that the plaintiff’s credibility concerning his complaint of ongoing pain was detrimentally affected by his evidence of pushing his broken-down car in 2004 after the accident. It must be recollected that the plaintiff volunteered this evidence, that his brother assisted in pushing the car, that the car was only pushed a short distance and that the incident occurred at a time when the plaintiff’s pain had not yet become chronic. The plaintiff’s evidence about this incident was supported by his brother.

Having observed the plaintiff giving evidence, I could discern nothing about his demeanour that suggested to me he was being untruthful or attempting to avoid questions. He appears to be an unsophisticated man, highly focused on his continuing pain and disability. He was not always a reliable historian, but after a lapse of nine years it would be remarkable if he professed to remember all the details of the accident, its aftermath and his treatment. His description of his history, and his complaints, appear to have maintained a reasonable consistency over the years. Whilst some of the medical witnesses have commented that they can find no physical explanation for his ongoing complaints of pain, none have said that their examination of him establishes malingering.

Additionally, the defendant conducted surveillance of the plaintiff on two occasions, and found nothing inconsistent with his complaints. The plaintiff’s complaints of ongoing pain, the need for treatment, and his disability as a result of the accident were strongly supported by his brother, who has seen him virtually daily for the last nine years and assists the plaintiff with his treatment.

It was suggested that the plaintiff had shown little inclination to work from the time he left school. I do not accept that suggestion. The plaintiff did not have a good year 12 result, and in the year or two after he left school he hoped to get a position as an apprentice mechanic. I accept that he put some considerable effort into attempting to find an apprenticeship. It was not unreasonable, at that stage of his life, that he focus on obtaining an apprenticeship in a field that interested him. When that did not eventuate, he worked at unskilled positions in supermarkets, only leaving those positions when changes to the workplace saw him receiving less and less work. Subsequently he found the position at CE Industries, where he worked for about 18 months at hard, physical work before he was injured. After he was injured, he attempted a return to work, which was unsuccessful due to his ongoing pain. His willingness to work at a position requiring hard, physical labour for 18 months prior to his accident, and his engagement in, and enjoyment of, physical pursuits such as running and soccer before the accident do not suggest that the plaintiff was lazy. Rather, it supports the proposition made by Professor Champion that the plaintiff was a man who took pride in his physical prowess before the accident and the loss of that ability was a significant psychological blow to him.

Notwithstanding his incorrect answers on his application for renewal of his drivers license, I find that the plaintiff is a truthful witness about his ongoing pain and disability.

THE NATURE OF THE PLAINTIFF’S CONDITION

I am satisfied that the plaintiff suffers from a condition, which may be described as a Somatoform Disorder (Mr Sutton) or a Pain Disorder with psychological factors and a general medical condition (Dr Roldan). It appears to me that in giving these descriptions, Dr Roldan and Mr Sutton were essentially trying to describe the same condition.

While Dr Lewin concluded that the plaintiff did not have a recognised psychiatric condition, he did not have the benefit of the results of the psychological testing undertaken by Mr Sutton. I accept Mr Sutton’s evidence, based on his testing, that the plaintiff has a Somatoform Disorder which developed as a consequence of the motor vehicle accident of 10 March 2004. Unfortunately, the plaintiff’s personality was such as to make him vulnerable to developing such a disorder.

However, I am satisfied that the plaintiff’s perception of pain is not entirely due to a psychological condition. I accept the evidence of Professor Champion that the plaintiff exhibits signs consistent with an underlying physiological condition, best described as central sensitisation of nociception. This condition arose as a consequence of the accident on 10 March 2004. It is a combination of that condition and the plaintiff’s somatoform disorder that results in the plaintiff’s ongoing perception of pain, and subsequent disability. In the plaintiff’s case, the psychological process is of greater significance in the plaintiff’s condition than the physiological process.

As a pain specialist, Professor Champion was best qualified to comment on the physiological processes underlying the plaintiff’s complaints of ongoing pain. The other pain specialist, Dr Speldewinde, did not, in my opinion, contradict the evidence of Professor Champion.

Ultimately, Dr Roldan did not dispute that the plaintiff’s complaints of pain may be genuine, and expressed the view that if the plaintiff’s reported symptoms were significantly contributed to by both physical and psychological factors, a diagnosis of pain disorder with both psychological factors and a general medical condition was reasonable. This fits neatly with the evidence of Professor Champion. Just as Dr Oates would defer to Professor Champion in relation to any pain condition suffered by the plaintiff, the opinion expressed by Dr Roldan as to the significance of the results on the Lees-Hayley Somatic Malingering Scale on the MMPI 2 (which opinion was based on Dr Oates failure to find accident related pathology) must also be viewed in the light of Professor Champion’s opinions.

I did not find Dr Lioulios’ reports to be helpful, and her correspondence with Dr Roldan did not reflect well on either of them professionally. Each appeared to lose objectivity in defending their opinions. Mr Sutton’s objections to Dr Roldan’s use of the Lees-Hayley Somatic Malingering Scale in isolation from the other scales on the MMPI 2 was uncontradicted, and where Mr Sutton and Dr Roldan differ I prefer the opinions of Mr Sutton.

ALLEGED FAILURE TO MITIGATE LOSS

Dr Roldan’s statement that psychological intervention in the period of three to six months after the accident would have stood an 80 per cent chance of preventing the development of a chronic pain disorder associated with psychological factors must be approached with caution. First, his opinion does not extend to the precise condition suffered by the plaintiff, including as it does central sensitisation of nociception. Secondly, it does not accord with the clinical experience of Mr Sutton. I am not satisfied that earlier psychological intervention would have prevented the plaintiff developing his present disorder.

The plaintiff’s reluctance to undergo psychological treatment is part of his somatoform disorder, and in any event, based on the evidence of Mr Sutton, any such treatment was very unlikely to be successful. I do not accept the defendant’s submission that the plaintiff’s failure to undergo psychological treatment at the earliest time it was offered to him was unreasonable.

The defendant’s second submission is that the plaintiff acted unreasonably in failing to undertake rehabilitation offered to him by the defendant. I do not accept that submission. The plaintiff engaged in a structured rehabilitation program as recommended by his general practitioner. That program was devised by a rehabilitation specialist, Dr Speldewinde, who has superior qualifications to the occupational therapist recommended by the defendant. The opinions of that occupational therapist can be given little weight as she never actually saw the plaintiff.

The third submission by the defendant is that the plaintiff acted unreasonably in failing “to accept the defendant’s offers of rehabilitation assistance when they were made to him”. I understand this complaint to be based upon the plaintiff’s failure to respond to what the defendant now says was an offer of further rehabilitation in her letter to him dated 18 August 2005. I am satisfied that the letter did not contain an offer to provide further rehabilitation services to the plaintiff. In that letter, the defendant advises the plaintiff that based on the report of Dr Oates the insurer will not pay any more medical expenses. The only offer that is made in that letter is to co-ordinate the plaintiff’s return to work. Where the defendant has, in that letter, effectively advised the plaintiff that she does not accept he suffers from any condition arising from the accident that requires further treatment, it was not unreasonable on the part of the plaintiff to continue seeking assistance from his own medical advisers.

The defendant’s final two submissions, that the plaintiff acted unreasonably in not returning to work and in not pursuing alternative employment opportunities, can be dealt with together. The plaintiff has limited education and suffers almost continuous pain. It is difficult to imagine that he is able to translate any residual capacity for work into actual employment in any market that is available to him based on his education and experience. Indeed, it appears to me that the plaintiff himself overrates his present capacity to retrain and return to the workforce. When shown brochures of courses available at CIT the plaintiff expressed interest in undertaking online courses, inferring that he has the capacity to undertake those courses. This evidence must be approached with great caution. The outline of the courses in the CIT brochure cannot provide sufficient information to enable a realistic appraisal of the plaintiff’s suitability to undertake such courses. No person cognizant of the plaintiff’s physical and mental abilities has examined the requirements of those courses and expressed a considered opinion that the plaintiff is capable of undertaking them. In the light of my findings that the plaintiff suffers ongoing pain by reason of injury he received in the accident, I do not accept that he has acted unreasonably in not returning to work of some kind at this point in time.

PROSPECTS FOR THE FUTURE

Based upon the evidence of Mr Sutton, the prospect of the plaintiff recovering sufficiently to return to work is poor. On the other hand, Professor Champion was not quite so pessimistic. He accepted that there remains a possibility that if the plaintiff’s interest is engaged in a form of retraining, and with the right assistance, and by identifying the right position, the plaintiff could return to work part-time and, later, possibly full-time. It is important to note the number of qualifications attending Professor Champion’s evidence on this issue.

I cannot say that it is probable that the plaintiff will return to employment, but it is possible. I propose allowing for that possibility by discounting future wage loss by 40 per cent, which also allows for the usual vicissitudes.

FINDINGS

I make it clear that I make the following findings on what appear to me to be the most important issues:

a)That on 10 March 2004 the plaintiff was injured in a motor vehicle accidence;
b)As a result of that injury the plaintiff sustained:
·A whiplash type injury to his cervical spine;
·Nervous shock;
·Soft tissue injuries to his lumbar spine;
·Contusions to his shoulder girdle and chest wall musculature;
·Trauma to the temporomandibular joint;
·A knee injury; and
·A chipped tooth.

c)All, except the first of those injuries resolved within 6 weeks of the accident;
d)The plaintiff has experienced pain in his neck/shoulder region from the date of the accident until the present time;
e)That pain is the result of a condition which may be described as a Somatoform Disorder or a Pain Disorder with psychological factors and a medical condition. He also suffered from depression. The accident was a cause of these conditions developing;
f)That the plaintiff resigned from his employment with CE Industries because he was unable to fulfil the duties of his position because of his neck pain, and was unable to take more time off work to recuperate;
g)That the plaintiff has been incapacitated for work by reason of neck pain from shortly after the accident to date and continuing. He retains some residual capacity for work, but his physical and psychological disabilities together with his education and experience make it most improbable that his residual capacity for work can be converted into an ability to earn an income;
h)That it is possible that the plaintiff’s capacity to undertake pain employment may improve in years to come, but any improvement is likely to be slow and gradual;

i) That as a result of his ongoing pain the plaintiff ceased undertaking domestic duties, which were then undertaken by his brother;
j)That the plaintiff’s brother has assisted, and continues to assist, him in his trigger point therapy;
k)That the plaintiff will need domestic assistance in the future; and
l)That the defendant has not established any failure on the part of the plaintiff to mitigate his loss.

DAMAGES

Past out of pocket expenses have been agreed in the sum of $14,297. I allow interest on $12,270 actually paid by the plaintiff for nine years at five per cent, totalling $4,969 interest.

Turning to past wage loss, I accept the plaintiff’s submission that an allowance of ten per cent for past vicissitudes including the possibility of periods of unemployment is appropriate. I accept the plaintiff’s evidence that he enjoyed the job at CE Industries, and I am satisfied he would have continued in that employment were it not for the motor vehicle accident. Applying this discount to the plaintiff’s past wage loss, as calculated in the Further Amended Statement of Particulars (as corrected by the plaintiff’s counsel in his submissions) a figure of $238,905 is arrived at.

Calculation of interest on past loss of earning capacity is complicated by reason of the plaintiff having received $350,000 in or about April 2010 after the Master’s judgment in his favour, and his subsequent repayment of $255,000 of that amount after the Master’s decisions was overturned by the Court of Appeal in August 2011. I will allow interest of $40,000 on the past wage loss to 30 April 2010 (based on interest at 4.5 per cent on this approximate loss of $150,000 incurred during that period). No interest will be allowed for the period 1 May 2010 to 31 August 2011, when the plaintiff had the benefit of the $350,000 paid to him pursuant to the orders of Master Harper. Finally, I allow interest for the period from 1 September 2011 until the date of judgment of $13,000 (based on the total loss of $238,905, less the sum of $35,000, being the sum of $95,000 retained by the plaintiff from Master Harper’s judgment less $60,000 accounted for in general damages, at 4.5 per cent).

The plaintiff’s loss of earning capacity to age 67 is valued at $646,397 based on a net wage of $691.63 per week, with a three per cent multiplier. As I noted earlier, I will reduce that by 40 per cent to allow for the usual vicissitudes and the possibility that the plaintiff’s condition may improve sufficiently to allow him to return to some form of employment. This leaves a total of $387,838.20.

I assess damages for past unpaid assistance at $17,000 based on two hours a week at $20 per hour. I allow interest on that sum for nine years at 4.5 per cent, totalling $6,885.

In assessing a sum for future unpaid assistance, I consider that the same discount factor of 40 per cent which I applied to assessing future loss of earning capacity is appropriate. There is a possibility of slow but gradual recovery which would translate into a capacity to undertake domestic tasks before it translated into an ability to earn. I allow an average of one and a half hours per week at $20 per hour for 25 years to age 67, which with the 40 per cent discount totals $39,000.

The plaintiff is also entitled to loss of superannuation for past economic loss of $21,501.45, based on nine per cent of $238,905. Superannuation on future economic loss is assessed at $34,905.42, based on nine per cent of $387,838.20.

I assess general damages at $95,000. I allow interest on $60,000 of that sum from April 2004 to April 2010 when the plaintiff received the proceeds of Master Harper’s judgment. I assess interest on the basis of six years at two per cent of $60,000 equalling $7,200.

I therefore assess damages as follows:

General Damages	$95, 000.00
Interest	$7, 200.00
Past out-of-pocket	$14, 297.00
Interest	$4, 969.00
Past loss of earning capacity	$238, 905.00
Interest	$53, 000.00
Future loss of earning capacity	$387, 838.20
Past unpaid assistance	$17, 000.00
Interest	$6, 885.00
Future unpaid assistance	$39, 000.00
Loss of superannuation	$56, 406.87
Total	$920, 501.07

I award damages to the plaintiff in the sum of $920, 501.07.
I certify that the preceding two hundred and five (205) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Burns.
Associate:
Date: 22 March 2013

Counsel for the Plaintiff:  Mr R Crowe SC
Solicitor for the Plaintiff:  Maliganis Edwards Johnson
Counsel for the Defendant:  Mr P Nolan
Solicitor for the Defendant:  Sparke Helmore
Date of Hearing:  4-7 February 2013
Date of Judgment:  22 March 2013