Wallis v Dependable Trucks and Couriers Pty Ltd
[2018] VCC 523
•24 April 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-16-04883
| JAMIE ANDREW LAWRENCE WALLIS | Plaintiff |
| v | |
| DEPENDABLE TRUCKS & COURIERS PTY LTD (ABN 60 147 395 373) | Defendant |
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JUDGE: | HIS HONOUR JUDGE LAURITSEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 and 14 November 2017 | |
DATE OF JUDGMENT: | 24 April 2018 | |
CASE MAY BE CITED AS: | Wallis v Dependable Trucks & Couriers Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 523 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – paragraphs (a) and (c) of the definition of “serious injury” – permanent serious impairment or loss of a body function to the lumbar spine – permanent severe mental or permanent severe behavioural disturbance – pain and suffering and loss of earning capacity
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Ansett Australia Ltd v Taylor [2006] VSCA 171; Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Mutual Cleaning and Maintenance Pty Ltd v Stamboulakis [2007] VSCA 46; Mobilio v Balliotis [1998] 3 VR 833; Petkovski v Galletti [1994] 1 VR 436; AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz (2012) 34 VR 309; Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505; Culver v Sekulich (1959) 80 Wyo 437; Makita (Australia) v Sprowles (2001) 52 NSWLR 705; Kovacic v Henley Arch Pty Ltd (2009) 22 VR 21; Jones v Dunkel (1959) 101 CLR 298
Judgment: Leave granted to the plaintiff to bring a proceeding for damages on the basis of pain and suffering and loss of earning capacity consequences.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D Crennan QC with Mr C Sidebottom | Gordon Ltd Lawyers |
| For the Defendant | Mr P B Jens QC with Mr N Dunstan | Lander & Rogers |
HIS HONOUR:
Introduction
1 Mr Wallis seeks permission to start a proceeding for damages against the defendant, Dependable Trucks & Couriers Pty Ltd (“Dependable”). He relies on paragraphs (a) and (c) of the definition of “serious injury” in s134AB(37) of the Accident Compensation Act 1985 (“the Act”). For (a), the permanent serious impairment or loss of a body function concerns his lumbar spine while for (c), the permanent severe mental or permanent severe behavioural disturbance includes an Adjustment Disorder, Pain Disorder, Anxiety and Depression. The consequences to Mr Wallis of the “serious injury” in (a) or (c) relate to pain and suffering and loss of earning capacity.
Circumstances
2 Mr Wallis is now forty-five. Since 2012, he has lived with his mother. He has been married twice. In late June or early July 2012, he separated from his second wife. He has one child from his first marriage, a daughter, aged fifteen, with whom he has no contact.
3 He attended Broadmeadows Technical School until part way through Year 10. For three years, he was apprenticed as a plasterer but left without finishing the apprenticeship. Over the years, he has worked in many jobs: shooting pigs and kangaroos in northern Queensland; plastering; furniture removing; maintenance work at the MCG; process worker on a production line; bottle shop attendant and hotel supervisor in Broome; fruit picker; fisherman; general hand with a television show called “The Circuit”; and a truck driver. In the last role, he has worked with several employers, culminating with Dependable between May and July 2012. His employment has not been continuous. There have been periods of unemployment due to lack of work or ill-health.
4 From the way Mr Wallis gave his oral evidence it is plain his memory is an issue in this case. He links his poor memory with a childhood injury. There are many references in the medical and other reports to this injury. In his words:
“I suffered a head injury when I was 13 years of age, when I was struck in the head by a golf ball. After this incident, I spent a couple of weeks in the Royal Childrens Hospital, where I was diagnosed as having suffered a fractured skull and bleeding on the brain. After that incident, I developed some issues with memory and concentration, which have persisted into my adult life.”[1]
[1]Affidavit of Mr Wallis sworn 21 April 2016 at paragraph [6]
2006
5 On 18 January, Mr Wallis attended the emergency department of the Broome Hospital. He complained of lower back pain starting that morning and radiating into his groin area. He told staff the pain started when he “rolled” out of bed. He spoke of a five-year history of such pain. He was x-rayed, prescribed Voltaren and Panadeine Forte and referred to physiotherapy. He returned to the hospital on 20 January to collect Centrelink forms.[2] There is no other recorded attendance that year.
[2]Exhibit 2
2007
6 On 9 January, Mr Wallis re-attended the Broome Hospital requesting admission to detoxify from his drug usage. He gave a history of past and present drug use including illicit drugs. His symptoms were noted as “anxiety, angry, depressed, sweaty, diarrhoea, anorexia, insomnia, no motivation, poor memory + concentration”. He was admitted: how long he stayed is unknown.[3]
[3]Exhibit 2
2011
7 On 29 October, Mr Wallis injured his lower back while lashing his load to the truck he was driving. He was then working for another employer, not the defendant, and was on a trip to Perth.[4]
[4]Affidavit of Mr Wallis sworn 21 April 2016 at paragraph [8]
8 Two days later, Mr Wallis saw a general practitioner, Dr Abdul Pozan, in Melbourne. He told Dr Pozan of his lower back and left leg pain. Dr Pozan noted loss of lumbar lordosis, tenderness in the left lumbar region and a restricted range of lower back movements due to pain. He prescribed Panadeine Forte and Celebrex and arranged for x-rays initially, and, then, CT scans.[5]
[5]Dr Pozan had already prescribed Tramal (?)
9 X-rays were taken that day and revealed:[6]
“There is a shallow scoliosis convex to the right. Some endplate spurring is visible in the lower thoracic spine. Mild endplate spurring and sclerosis is noted at L4/5 and L5/S1 with disc height reduction suggesting disc degeneration. Sacro-coccygeal alignment is normal and there is no bone abnormality of the sacrum. The left iliac crest is noted to be held quite superior to that on the right on erect images which may indicate that there is lower limb shortening or asymmetrical weightbearing secondary to pain. The sacro-iliac joints, psoas outlines and lumbar pedicles appear normal. If symptoms persist, CT of lumbar spine should be considered.”
[6]Report of Dr Tudball: Plaintiff’s court book at page 83
10 Dr Pozan did not delay for, on 7 November, CT scans were made.[7] Three of the lumbar discs were noteworthy:
“At L3/4, there is a broadbased disc herniation which indents the theca, projects a little more towards the left than the right and results in moderate canal stenosis.
At L4/5, a broadbased disc herniation encroaches on the theca and lateral recesses to mild degree without obvious displacement of the nerve roots.
At L5/S1, a broadbased annular disc herniation projects posteriorly in the midline for a depth of 6 mm significantly indenting the theca and displacing the left S1 nerve root slightly laterally. Mild canal stenosis results.”
[7]Plaintiff’s court book at page 84
11 Although the clinic tried, Dr Pozan did not see Mr Wallis again until 19 December. Then, part of his entry reads:[8]
[8]Defendant’s court book at page 111
“Back pain- pain score 4.5/10.
Pain exacerbated with straightening the back and relieved with inclining forward position of the spine.
No tingling senstation (sic).
Sleep disturbed with lying with the back straight…
…
Was in Perth and didn[’]t get the recall letter cos change of address. Currently, unemployed – can[t’] do much cos of the pain.”
12 Under “Examination”, Dr Pozan wrote:
“Unable to sit/stand erect cos of pain.
Spinal movements - restricted cos of pain not performed.
Knee and ankle jerks - normal.
Plantar equivocal.
Dorsalis pedis weakness L>R.”
2012
13 During 2012 until 6 June, Dr Pozan saw Mr Wallis four times and another doctor in the clinic once. Before 6 June, the last visit was on 16 March. At each visit, Mr Wallis complained of back pain. In one, on 5 January, Dr Pozan prescribed Oxynorm, Diazepam and Norspan Patches. In another, on 24 January, Dr Pozan noted:[9] “Sit inclined forwards for pain relief.”
[9]Defendant’s court book at page 110
14 On 17 January, MRI scans were made.[10] They identified disc degeneration at four lumbar discs: L2-3; L3-4; L4-5; and L5-S1. The earlier CT scan detected no abnormality with the L1-2 and L2-3 discs. For the remaining discs:
“L4-5
A moderate sized asymmetric left sided broad based disc bulge is identified. There is mild left subarticular recess canal stenosis with mild compromise of the traversing left L5 nerve root. Prominence of the epidural fat. Mild central canal stenosis. Right subarticular recess is adequate. Mild left sided neural foraminal stenosis, without neural compromise.
L5-S1
Broad based disc bulge and marginal spur are present. Mild bilateral neural foraminal stenosis, without neural compromise. Slight prominence of the epidural fat compresses the thecal sac but this finding is unlikely to be of clinical significance. The subarticular recesses are adequate.”
[10]Plaintiff’s court book at pages 85-86
15 Comparing the reports of the CT and MRI scans is interesting. With the former, in the L5-S1 disc, the radiologist identified a significant (6-millimetre) disc herniation with neural compromise, the latter spoke of a bulge without neural compromise. However, the true significance of these differences depends on the views of the expert witnesses, not on mine.
16 Pausing here. Twice Dr Pozan noted Mr Wallis sitting forward to relieve the pain. He did so almost continuously before me when giving evidence. Despite his general practitioner’s entry of an examination on 11 January, Mr Wallis denied his back was “pretty bad” in the early months of 2012.[11]
[11]Transcript at page 52
17 On 24 January, Dr Pozan referred Mr Wallis to the Neurosurgery Outpatients Department of The Alfred hospital. His letter of reference reads:[12]
[12]Defendant’s court book at page 97
“Mr Jamie presented to me on 31/10/11 with a back pain for 2 days. He was doing multiple jobs. His backache persisted and he was seen on follow-up on 4/11/11 and CT scan done showed disc herniation at L3/4, L4/5 and L5/S1. However, he was not contactable on recall because he was in Perth.
Since that time, his back pain worsened - not able to walk/sit in erect position because of the pain. The pain is relieved with inclining forwards position. He is constipated. No tingling/sharp pain to legs. No saddle numbness. His sleep is disturbed due to the pain and has to change postures all the time for pain relief. S/H He is unemployed – not able to do any work.
He was on Diazepam and Norspan patch with no improvement.
O/E Loss of lumbar lordosis. Spine ROM – restricted by pain.
Both knee/ankle reflexes normal. Plantar - equivocal. Dorsalis pedis weakness L>R.
Hip and knee joints movements – not done due to pain.
MRI done on 17 January 2012 as attached.
…”.
18 On 16 March, Mr Wallis saw Dr Pozan, in part, about the x-ray results for his left foot. However, he did complain of back pain, placing it at 6 to 7 out of 10. He said he had not taken Oxynorm for about two weeks and was taking Panadeine. Dr Pozan again prescribed Oxynorm and Amoxil. Mr Wallis said he was seeking work. Dr Pozan advised him to limit himself to four hours each day for three to five days “to see how the pain is before increasing the number of hours”. He noted a review on 3 April but it did not happen.
19 When did Mr Wallis resume work after October 2011? He says:[13]
“During early 2012 my back pain improved and I was able to cease medical treatment and return to work. I resumed work as a truck driver once more in or about May 2012. By that stage I felt my back was much better and I was able to undertake my normal range of duties without issue.”
[13]Affidavit of Mr Wallis sworn 21 April 2016 at paragraph [10]
20 The opening sentence of the paragraph is ambiguous. It could mean he resumed work in early 2012 and then as a truck driver in about May with the defendant.
21 Mr Wallis saw Dr Pozan on 31 October 2011. On 4 November, Dr Pozan saw him again. They discussed the x-ray results. Mr Wallis complained of less back pain than before. On 19 December, Dr Pozan noted Mr Wallis was currently unemployed and could not do much because of the pain. On 5 January, Dr Pozan wrote a certificate for Centrelink, presumably for some kind of disability benefit. On 24 January, Dr Pozan noted he was still unemployed, frustrated, still with back pain and having difficulty in walking. On 7 February, he wrote another certificate for Centrelink. On 16 March, Dr Pozan noted Mr Wallis was seeking work and gave him advice about limits on his capacity. That is the last attendance until 10 July. He gave further prescriptions for Oxynorm and Amoxil.
22 By 7 May, Mr Wallis had a vulnerable back but the capacity to work in the position he gained. On that day, he started working for Dependable as a full-time truck driver, working Monday to Friday between 8.30am and 4.30pm.
23 On 6 June, Mr Wallis injured himself. He described the circumstances as follows:[14]
“… I suffered a major aggravation of my back injury whilst working for Dependable. On that day I was required to pick up a large metal electrical roller door from Doorways, a business in Campbellfield. The roller door was approximately 4.5 metres long and very heavy and awkward to manoeuvre. After one end of the roller door was balanced on to the back of the truck I got inside the truck and bent down in order to try and lift and manoeuvre the door further in to the rear of [the] truck. As I did not so, I suffered the immediate onset of sharp pain into my lower back.”
[14]Plaintiff’s affidavit sworn on 21 April 2016 at paragraph [11]. The defendant’s counsel conceded the occurrence of this incident. He put in issue its significance: see Transcript at page 92.
24 Mr Wallis contacted his brother who came and finished his shift.
25 On the same day, Mr Wallis signed his Claim for Compensation. Curiously, he stated he gave his first medical certificate to Dependable seven days later and Dependable stated it received his completed Claim Form on 11 July. Nevertheless, his claim was accepted and weekly payments of compensation started. In his Claim Form, he describes the incident:[15]
“I was in back of truck when I picked up one end of a 4-6 meter electronic door track when I felt a sharp shooting pain in my lower back and I could not move for a couple of minutes.”
[15]Plaintiff’s court book at page 129. Mr Wallis stated his earnings were $20 per hour for a week of 36 to 38 hours.
26 While the injury is described:
“Lumbar spine L3-4
Disc bulge
Pinched nerve L4-5.”
27 The appointment sought by Dr Pozan in January took place on 13 June at the Neurosurgical Department of The Alfred hospital. Mr Keith Gomes, neurological fellow, saw him and wrote that day to Dr Pozan:[16]
“I reviewed Jamie today in the Neurosurgery Outpatient Clinic. He is a 40 year old man who has had an ongoing history of lower back pain which is associated with symptoms suggestive of bilateral sciatica, increasing over the last six months.
On examination I found he had grade 5 power in all myotomes with normal reflexes and a negative straight leg raise test. He had no upper motor neurone signs. His sensory exam shows evidence of decreased sensation in the L5 dermatomes, especially on the left hand side.
As you know, CT and MRI show evidence of a disc bulge and prolapse at the L4/5 level which is paracentral and worse on the left hand side. This seems to be irritating his exiting L5 nerve root on this side. Based on these findings, I think at this stage he is best conservatively managed and I have recommended to him that he should limit his lifting to 15kg at work … .”
[16]Defendant’s court book at page 98
28 Mr Gomes referred him to physiotherapy at the hospital, however, by September, Mr Wallis was complaining about the difficulty in attending for physiotherapy because of the distance to the hospital. Dr Pozan arranged a local physiotherapist.
29 Mr Wallis says there was little improvement in his condition and he did not work until his dismissal in July.
30 Sometime in June, Dependable told its authorised agent of the injury. I say “sometime” because the defendant’s court book has only two of four pages and the page where the form was dated is missing.[17] The author says Mr Wallis worked on 7 and 8 June and returned on 14 June. 9 and 10 June are Saturday and Sunday. 11 June was a public holiday. 12 and 13 were Tuesday and Wednesday.
[17]Pages 93-94
31 On 10 July, Mr Wallis saw Dr Pozan. Judging from the clinic’s records,[18] this was the first time he saw his doctor after the 6 June incident. Dr Pozan noted:
“… Went to work in May 2012 - hurt his back a week ago.
He was seen in Alfred early this y[ea]r and on modified work as recommended by the Specialist.
He didn’t go to work yesterday and he was told by his bro[ther] who works as a casual in the same company that he was fired.
His wife left him 2 weeks ago … .”
[18]Defendant’s court book at page 108
32 Dr Pozan again prescribed Oxynorm capsules, 10 milligram tablet with one daily. He certified Mr Wallis unfit for his usual work from that day to the next. The next day, he saw a physiotherapist, Caitlin Thompson. He saw her five times.
33 Also on 10 July, Justin Luff, a director of Dependable, wrote to Mr Wallis. In part, it reads:[19]
[19]Defendant’s court book at page 95
“Be advised that as at 8.30 am on Tuesday the 10th of July, 2012 I have decided to terminate your employment immediately.
You did not arrive for work on the Monday the 9th of July and I have received no communication from you by phone or in person regarding your absence, I therefore am unable to assess your situation.
Your employment started on the 7th of May 2012 and since then the following problems have arisen:
§ Lack of working phone or mobile phone for contact.
§ Excessive sick days, possibly at the rate of 20 per year based on sick days taken since start of employment. My business is small and can’t meet its customer requirements when you don’t turn up for work, and certainly can’t afford to pay for a[n] employee who takes excessive sick days off.”
34 Pausing there, when Mr Luff complains of his failure to attend work on 9 July, he implies Mr Wallis attended work during the previous week. In his letter to an authorised agent seven days later, Mr Luff says Mr Wallis had four “sick” days in eight weeks, which he describes as excessive for a very small business.[20] The “eight weeks” is the period between 7 May and 10 July. The four “sick” days includes his time off following the injury. He did not stop work on 6 June because his brother helped him. He did not see Dr Pozan between 6 June and 9 July. On 13 June, Mr Gomes certified him fit for modified duties involving a limit on lifting beyond 15 kilograms. I will discuss later whether Mr Wallis worked after 6 June until his dismissal on 10 July.
[20]Defendant’s court book at page 96
35 Between 8 August 2012 and 17 January 2013, Mr Wallis attended Dr Pozan’s clinic on thirteen occasions. In three, he saw a physiotherapist, Hew Gibbs. Previously, he received physiotherapy treatment at the hospital.
36 On 18 October, Steve Cooney, a vocational advisor, with the Recovre Group, assessed Mr Wallis. To Mr Cooney, Mr Wallis was unremarkable in his appearance. He was polite and professional. He contributed to all aspects of the assessment. Mr Cooney identified three jobs as suitable: traffic controller; courier; and radio despatcher. However, his suitability for these depended on appropriateness from a medical perspective. A traffic controller needs a certificate in traffic control.
2013
37 On 17 January,[21] Dr Pozan saw Mr Wallis, noting he appeared withdrawn. He increased his restrictions to no lifting, twisting or bending. He prescribed Nitrazepam, Oxynorm and Pristiq.
[21]This is the last entry by a doctor in the clinical records shown to me
38 On 4 February, Mr Jonathan Hooper, orthopaedic surgeon, examined Mr Wallis at the request of an authorised agent. Mr Wallis told Mr Hooper he had never had any previous back pain before the 2012 incident. He accepted this statement because he was unaware of the earlier CT and MRI scans. At that stage, I daresay, no one relevant other the general practitioner knew of their existence. To Mr Hooper, Mr Wallis moved “very hesitantly about the office”. His examination showed very little back motion (forward flexion, 60 degrees, extension, zero) and straight leg raising (15 degrees for each leg). There were no “hard neurological signs”.
39 Mr Hooper saw the need for “more aggressive” treatment, for Mr Wallis needed to get his pain under control. He should be advised to participate in a self- exercise programme, referred to a pain management programme “where he can have his problems explained to him” and weaned off the narcotic medicine and onto some safer medicine. He should be helped to return to work. He is unfit for his usual work. In theory, he is suited to lighter work if such can be found. He recommended a review in six months’ time.
40 On 15 February, further MRI scans showed much the same as the 2012 MRI scans. In relation to the L4-5 and L5-S1 discs:[22]
“L 4/5
Moderate-sized asymmetric left-sided broad based disc bulge is identified. There is contact with both traversing L5 nerve roots, with minor mass effect upon the left one. Mild to moderate central canal stenosis. Minor right-sided facet joint degeneration. Minor left-sided neural foraminal stenosis without neural compromise. Right neural foramen adequate.
L 5/S1
Broad-based disc bulge and marginal spur present. Minor bilateral neural foraminal stenosis, without neural compromise. The central canal and subarticular recesses are adequate. Prominence of the epidural fat distorts and compresses the thecal sac. This is unlikely to be of clinical significance at this level.”
[22]Plaintiff’s court book at page 86
41 On 7 March, Mr Wallis underwent a CT guided nerve root block. The radiologist concluded:[23]
“L4/5 posterolateral disc bulge is likely impinging the left L5 nerve roots at the lateral recess.
Subsequent left L5 nerve root block has been performed under CT guidance. This transiently caused pain in the calf which does not quite match up to the current symptoms.
No other complication encountered.”
[23]Plaintiff’s court book at page 88
42 On 18 July, Dr J Kendall Francis, surgeon, examined Mr Wallis at the request of the same authorised agent.[24] Mr Francis found history taking difficult even though his mother helped. She told him of a childhood head injury. He wondered whether drug taking and strong medicine affected his memory. He was better informed than Mr Hooper. He saw his report but also the reports of the MRI scans conducted on 17 January 2012 and on 15 February 2013. Both described long standing spinal changes and were “well-nigh identical”.
[24]Defendant’s court book at pages 8-19
43 His observation of Mr Wallis:[25]
“… Mr Wallis presented as a tall, sad, nail-biting, slim man. He sat and stood alternately during his history giving. …
When he walked it was in a guarded fashion but no specific limp. He barely attained walking on tiptoes and heels, and toe touching was only achieved to knee level. Squatting was slowly done to some two-thirds full range. All movements were associated with back pain in the low lumbar region and laterally. Climbing on and off the examination couch was a struggle, but he could at least sit upright and with knees fully extended and hips flexed at a right angle.”
[25]Defendant’s court book at page 10
44 There was normal lordosis, restriction on neck movements and active straight leg raising but no neurological signs in his legs. Movements of the right hip were associated with low back pain developing.
45 Mr Francis believed Mr Wallis suffered an aggravation or recurrence of symptoms due to the June 2012 incident. He made no mention of the permanency of this aggravation or recurrence. Mr Wallis could not return to his pre-injury work. He had no current work capacity because he was vague, in pain, and with psychiatric problems. He recommended a psychiatric examination.
2014
46 Mr David de la Harpe is an orthopaedic surgeon. On 26 March, he examined Mr Wallis at the request of his then general practitioner, Dr Amir Nekoee.[26] Interestingly, he found Mr Wallis a good historian even though his mother corrected some of the history. He saw a slow, guarded gait with a slightly forward flexed attitude. He found reduced lumbar flexion of 45 degrees and extension of 10 degrees, each limited by pain. There was no neurological abnormality of the legs. He was aware of the 2013 MRI scan which showed three levels of degenerative discs but no direct neural compression. He thought surgery would not help but a multi-disciplinary pain management programme might.
[26]Report dated 26 March 2014: Plaintiff’s court book at page 37
47 On 13 May, Professor Vernon Marshall examined Mr Wallis at the request of the same authorised agent.[27] He is an emeritus professor of surgery. On his examination, Professor Marshall found minimal active movement of the thoraco-lumbar spine (flexion, extension and rotation). These movements were accompanied by “global pain and perceived pain behaviour”. To Professor Marshall, the incidents of 2011 and 2012 caused low back strain injuries. He now had low back pain and a Chronic Pain Syndrome. There were no neurological abnormalities. He could not resume his pre-injury duties. He could perform modified duties without lifting above 5 kilograms and avoiding frequent bending or stooping. Nevertheless, Professor Marshall was very guarded about a return to work because of the significant contribution of non-organic factors.
[27]Defendant’s court book at pages 20-27
48 On the same day, Mr Wallis was seen by a psychiatrist, Dr John Douglas, at the request of the same authorised agent. He diagnosed an Adjustment Disorder with Depressed Mood. He recommended a pain management programme to teach him more effective ways of managing his pain and address his perceptions of disability and dependence. At present, his psychiatric symptoms prevent doing his pre-injury duties or suitable work due to his focus on dependence and disability.
49 In the first of two supplementary reports, Dr Douglas stressed three bad diagnostic features for Mr Wallis: a strong illness conviction; intrusive pain; and being out of the workforce for two years. His psychiatric symptoms alone prevented him returning to any work. Any prospect of a return needed to start with a pain management programme. The programme would need to motivate him and manage his pain. After sixteen weeks in such a programme, one would know whether he had benefited and had then the capacity for retraining.
50 Ms Anastasia Gasparis is a psychologist. She practised out of the same clinic as Mr Wallis’ general practitioner. She first saw him on 12 July. After the fourth visit on 25 September, she wrote a report on 19 October.[28] He told her of constant pain, constant sadness, irritability, difficulty making decisions, concentrating for long, an inability to sit for long or walk short distances without pain or do things such as washing his car or mowing the lawn. She saw him walk slowly. She diagnosed him as suffering from an Adjustment Disorder with Depressed Mood. In saying Mr Wallis could not work, Ms Gasparis mixed the psychological with the physical. She recommended his referral to a pain management programme that could be simplified for him to overcome his weakness in reading and inability to sit for more than an hour.
[28]Plaintiff’s court book at pages 38-39
51 On 7 August, Ms Julie Tran, rehabilitation consultant with Nabenet, examined Mr Wallis.[29] She identified five suitable jobs for him, in descending priority: contact centre operator/telemarketer; customer service representative/ information clerk; despatch/transport clerk; warehouse/production clerk; and cashier/console operator. For each, Ms Tran recommended Mr Wallis undertake a basic computer course. She identified a particular course which would teach “general computer operations, desktop functions, basic internet and email tasks”. However, she noted the reservations from a psychiatric perspective of Dr Douglas and Dr Delvari about his inability to return to work and awaited further medical advice about his ability before arranging anything.
[29]Defendant’s court book at pages 83-92
52 On 2 November, Ms Gasparis commented on the 2014 report of Dr Douglas by setting out in greater details Mr Wallis’ complaints to her.[30] By then, she had seen him once more the day before. She set out the physical: difficulty sitting for more than ten to fifteen minutes with having to move, stand or adjust his seating position because of the pain; less able to do usual personal things like bathing, toileting and bending to put on socks; constant pins and needles and stabbing pains at the top and bottom of his back; painful feet; daily migraines; difficulty sleeping; inability to concentrate for long periods. From the psychological: lethargic; irritable; feeing of inadequacy; and lacks enjoyment in life.
[30]Plaintiff’s court book at page 40
53 Ms Gasparis thought Mr Wallis was unable to work, and that would continue indefinitely due to the chronic nature of his back pain. She again said he should be referred to a “formal” pain management programme.
54 On 19 November, Ms Caroline Tan, an orthopaedic surgeon, examined Mr Wallis at the request of his general practitioner.[31] She found examining him difficult, concluding:[32]
“Jamie has a serious persistent pain syndrome and while there is some radiological explanation for it, he has clearly got abnormal pain behaviours so surgery on his spine is certainly not going to be enough to get him back to a normal life. I encouraged him to continue with his attendance at Dorset rehabilitation center in Pascoe Vale … .”
[31]Plaintiff’s court book at pages 53-54
[32]Report dated 19 November 2014: plaintiff’s court book at pages 53-54 and at 54
2015
55 Dr Kevin Young is a consultant in rehabilitation and pain medicine. On 9 January, he first saw Mr Wallis at the request of his general practitioner at the Pain Management Clinic at the Dorset Rehabilitation Centre.[33] He saw him again on 20 February, 26 June and 18 November 2016. He reported to the general practitioner after each visit.
[33]Reports dated 16 January 2015, 23 February 2015, 29 June 2015 and 18 November 2016: Plaintiff’s court book at pages 55-62
56 On his initial examination:[34]
“… Jamie presented with a flat affect and was conversing appropriately, although was at times distant to distracted. His back revealed slightly atrophied paraspinal musculature with generalized hyperalgesia over the lumbar spine region and focally over the sacroiliac joints worse over the left more so than the right. He has extremely limited range of movement in all planes and straight leg raising was negative bilaterally to 70 degrees due to tight back muscles and hamstrings. A Faber test was positive on the left and equivocal on the right. Neurological lower limb examination did not reveal any obvious abnormality.”
[34]Plaintiff’s court book at page 56
57 Dr Young tentatively diagnosed non-specific musculo-skeletal back pain with possible sacroiliitis and facet arthropathy and some left-sided L5 radicular pain. He recommended changing medicines and an assessment for a pain management programme.
58 On 20 February, Dr Young saw Mr Wallis again. He was “quite somatically focussed” and felt he was “going downhill”. He said his toes were numb all the time but there was otherwise no clear focal neurology. There had been some changes to the medicines. Dr Young proposed to see him again in three months.
59 Judging from the reports, Dr Young saw him again on 26 June 2015 and then on 18 November 2016. He may have seen him at other times but there is no evidence of it.
60 Between 30 April and 18 August, Mr Wallis underwent a rehabilitation programme at the Dorset Rehabilitation Centre. The discharge summary covered three areas: physiotherapy; occupational therapy, and psychology. Judging from the discharge summary, he made little progress.[35] The physiotherapist spoke of his high level of pain, emotional distress and poor physical condition impeding his capacity to participate in physiotherapy. There was no progress except in the distance he could walk (50 metres to 185 metres in four minutes). The occupational therapist saw his low mood and lack of motivation as the biggest barriers to progress. Their sessions stopped so he could focus on the psychological. Despite ten sessions with a psychologist, his mood and motivation remained low. The Depression Anxiety Stress Scales (DASS) remained at the extremely severe levels for each of depression, anxiety and stress with no improvement.
[35]Defendant’s court book at pages 74-76
61 Mr Wallis’ general practitioner, Dr Delavari, referred him to a psychiatrist, Dr Raid Al Humrany, for treatment. By October, Dr Al Humrany could say:[36]
“… I am of the impression that Mr Wallis described a history of an adjustment disorder with a mixture of anxiety and low depressive mood due to alleged work-related physical injury on context of previous episodes of depression following separation from his [e]x-wife, self harm behaviour in the past with emotional trauma during childhood.
In my opinion, his current psychiatric condition is secondary to alleged physical problems.”
[36]Report dated 6 October 2015: Plaintiff’s court book at page 80
62 Dr Al Humrany thought his mental state was then stable with fluctuations of mood, behaviour and attitude, with his physical injury, not psychological, being the obstacle to working.
63 On 28 July, Mr David Brownbill, neurosurgeon, examined Mr Wallis at the request of his solicitors.[37] His mother was present. His examination showed profound restriction of the movement of the thoraco-lumbar spine without abnormality of the legs or radiculopathy. He saw the incidents of 29 October 2011 and 6 June 2012 as aggravating his asymptomatic lumbar spine degenerative changes. Both incidents significantly contributed to this aggravation. The latter incident remaining a material cause to his current back condition. He was unfit to perform any suitable employment “in an ongoing or reliable fashion” and this incapacity was likely to remain for the foreseeable future.
[37]Plaintiff’s court book at pages 89-94
2016
64 Early in the year, Mr Wallis suffered a heart attack and was taken to hospital. He underwent surgery with a stent inserted. Later in the year, keyhole surgery was performed. He attends a cardiologist.
65 On 18 November, Dr Young saw Mr Wallis for the last time. He observed he appeared calmer than before, noting he was seeing a psychologist fortnightly. He was coping with Panadol Osteo, Tapentadol, Gabapentin, Clonidine, Quetiapine and Mirtazapine. He encouraged Mr Wallis to continue seeing his psychologist and also a physiotherapist for advice on a gentle exercise programme at home and hydrotherapy.
2017
66 Since 2012, Mr Wallis attended the Gladstone Park Medical Clinic. He was treated by Doctors Nekoee and Delavari. Since 2016, Dr Eshraghi treated him. By August, Dr Eshraghi saw him as unfit for work due to physical and psychiatric issues. The physical issues were chronic pain, some deformity of the spine and an inability to walk properly. His psychiatric issues were depression and anxiety, worsened by his heart attack in 2016.
67 On 18 July, Dr Joseph Slesenger, occupational physician, examined Mr Wallis at the request of his solicitors. Unusually, his examination was made over two days. It ended early on the first day because Mr Wallis was in severe pain and his back went into spasm. The degree of movement in the lumbar spine was much restricted, as was his ability to raise his straightened leg. In fact, Mr Wallis could not lift his legs from a seated position. Dr Slesenger diagnosed both a mechanical injury to, and aggravation of, degenerative disease of the lumbar spine, a Chronic Pain Disorder and a psychological impairment, while acknowledging this last was beyond his expertise.
68 He saw Mr Wallis’s employment as being significant contributing factor to his injury. He noted ten functional limitations and a number amounting to permanent work restrictions. He excluded a return to truck driving. Generally, he believed Mr Wallis could return to work with restrictions for four hours each day for four days each week. The solicitors asked him about eight jobs. Dr Slesenger advised against three and had reservations about the rest. In two, there would lifting beyond his capacity. In the third, there was no experience, difficulty using computers and lifting above capacity. Where he had reservations, they were due to no experience in the job and difficulty using computerised equipment. To an extent, Dr Slesenger backtracked on his general comment for, after examining each of the suggested jobs, he said:[38]
“Given the variability of his symptoms and the unpredictable nature of his symptoms, I have reservations as to whether he is likely to attend work on a consistent and reliable basis.”
[38]Plaintiff’s court book at page 109
69 In answer to another question, he thought Mr Wallis suited to light sedentary work (for example a packer or light assembler) working three to four hours each day and three days each week. He reiterated his view about consistency and reliability.
70 On 20 July, Dr Peter Blombery, a physician specialising in vascular disease, examined Mr Wallis at the request of his solicitors. Although given reports by the solicitors, I do not know which. His examination showed little movement of the lower back or on straight leg raising. Dr Blombery considered the October 2011 incident had exacerbated existing degenerative changes in his lumbar spine but this exacerbation had virtually ceased by the time of the 6 June incident. Before October 2011, his degenerative back was not symptomatic.
71 Apart from the aggravation or exacerbation, Dr Blombery believes Mr Wallis has developed a Pain Syndrome. However, Dr Blombery describes an organic, not psychological, change:[39]
“… he has developed a pain syndrome where there is sensitisation of pain nerve pathways, both in the periphery as well as the brain and spinal cord, such that non-painful stimuli become interpreted by the cerebral cortex as being painful. This process is also termed central sensitisation.”
[39]Plaintiff’s court book at page 125
72 Dr Blombery noted multi-disciplinary treatment is the most appropriate treatment. This would include using analgesics, anti-depressants, anti-neuropathic and other drugs, physiotherapy, behavioural therapy, occupational therapy and other treatments including TENS and acupuncture. Since Mr Wallis had received pain management at the Dorset Clinic with little effect, his prognosis was poor and likely to remain so for the foreseeable future. He noted marked Depression and Anxiety but thought these were minor causes of his pain. His capacity to drive trucks had gone forever. He is unsuited to other work because of the “large doses of opiate analgesics and has very poor functional status”. He cannot concentrate due to the analgesics.
73 Dr Albert Kaplan is a psychiatrist. On 26 July, he examined Mr Wallis at the request of his solicitors. He was given a wealth of documents, the latest being October 2015. He also received three reports of Ms Gasparis, which he said were undated. All of her reports which I have seen were dated but the dates were placed in unusual spots. I assume Dr Kaplan saw the same reports I saw. For part of the examination, Mr Wallis’ mother helped with information. He even included a section of his report entitled: “History from mother.”
74 To Dr Kaplan, Mr Wallis appeared to be in considerable physical discomfort and pain, choosing to sit in a high-backed chair, and apologising at one stage when he stood up to relieve his pain. The doctor and he maintained good eye contact and there was no difficulty in establishing rapport. He displayed no abnormalities of speech, thinking or perception except he was preoccupied with his injury and its impact on his life. He appeared depressed, subdued and somewhat withdrawn. He expressed varying degrees of frustration, the most reserved for his injury and its consequences with feelings of despair about his circumstances and guilt about his irritability with his family. He appeared of average intelligence with an unimpaired insight.
75 Assuming Mr Wallis was gregarious, even-tempered and functioning effectively before the incident on 6 June, Dr Kaplan diagnosed an Adjustment Disorder with Mixed Anxiety and Depressed Mood caused by the back injury, chronic pain, inability to work and other physical limitations due to pain.
76 The prognosis for his psychiatric disorder depends on the level of pain he suffers. If it increases, so will his depression. His capacity for work is mainly controlled by the pain although his psychological state (in particular, low frustration tolerance and loss of self-esteem) will have a significant impact on his capacity to work. His capacity for work will be largely determined by his physical condition. He will require his psychological counselling as long as he suffers significant symptoms.
77 By 30 July, Ms Gasparis had changed her diagnosis to Major Depression with Melancholic Features.[40] Her information came from what he told her and what he wrote or said in tests. By 30 July, she had seen him many times for counselling. As with most psychologists in my experience, she was careful to compare Mr Wallis’ symptoms with the diagnostic features of a recognised disorder:
[40]She changed it by, at least, December 2016
(a)depressed mood most of the day, nearly every day;
(b)marked diminished interest or pleasure in all, or almost all, activities most of the day, nearly every day;
(c)insomnia nearly every day;
(d)psychomotor agitation or retardation nearly every day;
(e)fatigue or loss of energy nearly every day;
(f)feelings of worthlessness nearly every day;
(g)diminished ability to think or concentrate, or indecisiveness, nearly every day.
78 She believed these symptoms caused significant distress or impairment in social, occupational or other important areas of functioning. They were not attributable to the physiological effects of a substance or other medical condition. She identified the melancholic features: loss of pleasure in all, or almost all activities; a distinct quality of Depressed Mood characterised by profound despondency, despair, and/or moroseness or by so-called empty mood; Depression that is worse in the morning; marked psychomotor retardation; and excessive or inappropriate guilt. She also identified three factors under the heading “anxious distress”: feeling keyed up or tense; difficulty concentrating because of worry, and feeling that he may lose control of himself.
79 Before 6 June, Ms Gasparis assumed Mr Wallis had an ability to work, drive long distances, make repairs around the house, wash his car, cook and clean. His persistent back and leg pain restricted or stopped these activities and contributed to his low mood, lethargy, restlessness, difficulties sleeping and feelings of worthlessness.
80 The combination of his Depression and chronic pain make it extremely difficult for Mr Wallis to socialise and do many of the daily living activities.
81 By December 2016, Ms Gasparis saw Mr Wallis lacking the capacity for “any meaningful and consistent” employment based on physical and psychological grounds[41] with the later including difficulty managing his emotions, an inability to concentrate for long periods, difficulties with memory, low energy levels, low motivation, fluctuating mood, inability to tolerate noise and insufficient patience for work. By July 2017, her view was unchanged. From a psychological perspective, this was due to:[42]
“… He has difficulty managing his emotions and becomes easily frustrated that results in him yelling and swearing. He has low energy levels and low motivation. His mood fluctuates between episodes of being angry to moments when he is sad and teary, he feels incompetent, has concentration and memory difficulties, is unable to tolerate noise and is impatient. … .”
[41]Report dated 8 December 2016: Plaintiff’s court book at pages 41-45
[42]Plaintiff’s court book at page 50
82 In talking about employability, Ms Gasparis combines these psychological symptoms with several physical symptoms: walks with a limp; difficulties sitting upright and still, and needs to move regularly.
83 On 2 August, Mr Brownbill re-examined Mr Wallis. Essentially, his opinions were unchanged; the two aggravations; and incapacity for suitable employment in “an ongoing or reliable fashion”. He noted a “marked emotional reaction component”.
84 On 3 August, Professor Marshall re-examined Mr Wallis. He told Professor Marshall of persisting and worsening low back pain going down both legs, particularly the left, and extending to the left ankle. Professor Marshall maintained his diagnosis of strain injuries to the lower back due to the incidents in 2011 and 2012. There is chronic pain but “signs of learned pain behaviour”. There is no convincing evidence of neural impingement. He is unfit for his pre-injury duties and, physically, only fit for light clerical/office work. Physically, he could cope with certain suggested jobs (for example traffic controller) “but his continued symptoms and probable learned pain behaviour make return to the workforce prospects doubtful”. His current symptoms have predominantly a non-organic basis.
85 Helpfully, Professor Marshall attached an article entitled “Learned pain behaviour” with his report.[43] The opening paragraph is instructive:[44]
“Pain is a symptom and does not necessarily indicate physical injury. While the relation between acute pain and tissue damage is close, patients with persistent pain who are referred to doctors, often describe more pain than appears warranted from any pathological process that is present. These patients are usually described as suffering from psychogenic or non-organic pain and may be referred for psychiatric or psychological help. Some have clear evidence of psychiatric illness—in particular depression—but, in others pain may develop or persist independently of any mental illness. How does this occur?”
[43]S P Tyler, psychiatrist, British Medical Journal, 4 January 1986, 292, 1-2
[44]Defendant’s court book at page 41
86 Absent a psychological state, expressions of pain may get from others some sort of welcome response (for example sympathy) even where there is a genuine physical injury in the background. An example of this state of “learned pain behaviour” is improbable descriptions of pain. With well-motivated patients it is treatable by a psychologist or behaviourally motivated psychiatrist.
87 On 8 September, Dr Dominic Yong, occupational physician, examined Mr Wallis at the request of the defendant’s solicitors. He saw Dr Young without his mother. The solicitors gave Dr Yong a wealth of documents and other information. From some of it, Dr Yong assumed the existence of a significant pre-existing lumbar discal injury before the incident on 6 June 2012. When asked whether Mr Wallis’ employment with the defendant had been a significant contributing factor to his condition or its recurrence, aggravation, acceleration, exacerbation or deterioration, surprisingly, he said he could not so conclude.
88 From a physical perspective only, Mr Wallis could do work tasks with reduced hours and with certain restrictions: avoid repeated bending and twisting of the back; avoid repeated firm pushing and pulling tasks; avoid lifting more 5 kilograms on a repeated basis, and vary his posture regularly between sitting, standing and walking.
89 The solicitors gave Dr Yong a report by Recovre, dated 18 October 2012. It proposed three jobs. Of the three, Dr Yong thought that of a radio despatcher suitable; the others were not. His return needed to be gradual given the time off work.
90 They gave him a report from Nabenet, dated 7 August 2014. It proposed five jobs. Dr Yong found all five as suitable: contact centre operator/telemarketer; customer service representative/information clerk; despatch/transport clerk; warehouse/production clerk, and cashier/console operator.
91 Dr Yong thought his current treatment was reasonable. He recommended an activity-based programme focussing on a range of active physical therapy modalities.
92 On 13 September, Associate Professor Peter Doherty, psychiatrist, examined Mr Wallis at the request of the defendant’s solicitors. He was given a number of reports by the solicitors, describing them in paragraph (9) of his report. There is no report later than August 2014. There are no reports from Ms Gasparis or Dr Young.[45] His mother was not present. Associate Professor Doherty’s report is detailed. He read the supplied reports and drew out salient features. In one respect, he was better informed than me: he had a report of Caroline Tan; I did not.
[45]This is not intended as a criticism of anyone. I merely note the fact in the context of what Associate Professor Doherty knew. However, he was aware of Ms Gasparis because he refers to her in paragraph 48 of his report.
93 Associate Professor Doherty noted Mr Wallis presented limping and bent over with difficulty walking. He spoke with a soft voice, He stood with obvious “pain-related behaviours” during the interview and examination. His affect was mildly reduced in quality but appropriate to the circumstances and consistent with his thoughts and conversation. There was hardly any eye contact and rapport was difficult to establish. Despite appearing close to tears, he found no distress, perturbation or anguish. His speech was unremarkable. His thoughts were linear, well-connected, without any peculiarities of content, stream or possession. There were no features of traumatisation. There was no pervasive downturn in mood. There was no self-blame, guilt or vegetative symptoms of depression typical of melancholia. His insight and judgment were unimpaired by a psychiatric condition.
94 Associate Professor Doherty diagnosed an Adjustment Disorder for four reasons: taking anti-depressant medication; attending a psychologist with earlier sessions with a psychiatrist; difficulties in adjustment to pain, functional limitation with clinically significant mood and anxiety symptoms, and a change in behaviour.
95 Although Mr Wallis emphasised heavily pain during the examination, Associate Professor Doherty did not diagnose a pain-related psychiatric condition:[46]
“I gave consideration as to if there is a pain-related psychiatric condition present. There is certainly a heavy emphasis on pain, and claimed functional limitations. There were many pain-related behaviours during the interview and examination. There is inconsistency between driving to this examination and his pain-related behaviour when in the interview room. My view is that, though there was a heavy emphasis on pain, no diagnosable pain-related psychiatric condition is present.”
[46]Defendant’s court book at page 71Y
96 Despite significant psychological vulnerabilities before 6 June, difficulties in childhood and developmental years, difficulties in relationships and a break-up with his wife, he did not diagnose a psychiatric condition before 6 June 2012.
97 It seems Associate Professor Doherty thought Mr Wallis could not do the three jobs detailed in the Recovre report dated 30 October 2012 on psychiatric grounds. He felt Mr Wallis had some capacity for work and tended to overstate his functional limitations.
98 He considered Mr Wallis’ condition as stabilised.
99 Generally, for an adjustment disorder, the prognosis is favourable because it “will fade spontaneously as the worker adapts, and there is a re-establishment of his usual coping mechanisms”. With Mr Wallis, Associate Professor Doherty said:[47]
“… There are significant issues the worker has had to deal with in his interpersonal relationships. He is now back living with his mother with persistent back problems which may significantly limit his social, occupational activities. There has been a second marriage failure. His [scil he] reports that his social and leisure activities are restricted, and now limited in scope. His chances of returning to a satisfactory social and personal situation is diminished.”
[47]Defendant’s court book at page 71BA
100 On 18 October, Ms Hayley Morey, an occupational therapist with CoWork Pty Ltd, conducted a vocational assessment of Mr Wallis. She tried hard to gain information from him. It remained sketchy, especially his work history. Subject to recent medical opinion, she felt he could do “light back and/or sedentary work”, which translated into a number of potentially suitable jobs on a part-time or full-time basis: courier (light); road traffic controller; ride on mower operator; parking/infringement officer, and service station attendant.
Current state
101 Mr Wallis has not worked since his dismissal. He receives weekly payments of compensation at the rate applicable for “no current work capacity”. He has a persistent dull ache in his lower back. This becomes worse with activity and prolonged standing and sitting. He has pain in his buttocks, right thigh, and the entirety of his left leg. He has numbness, pins and needles and tingling in his left foot and big toe. He is largely inactive. His sporting activities have ceased. He socialises little. He sleeps poorly. He is depressed and anxious. He takes medicines for his pain, sleep and depression. In 2016, he suffered a heart attack, and a stent was inserted. Later, he had other surgery to his heart. He experiences intermittent chest pain. He takes Plavix and aspirin.
102 He lives with his mother. His brother is his mother’s carer. His mother accompanies him to doctors’ appointments. She remembers more than he does. He sees his general practitioner, Dr Sara Eshraghi, monthly and his psychologist, Dr Ana Gasparis, regularly.
Legal principles
103 To give Mr Wallis permission to sue for damages, he must prove:
(a)he suffered an injury to his lumbar spine or a mental or behavioural disturbance or disorder arising out of or in the course of his employment with Dependable. On the evidence, he has suffered both and they arose out of or in the course of his employment with the defendant. There is no need to have regard to the considerations in Ansett Australia Ltd v Taylor[48] to make those findings. The injury to his lumbar spine is an aggravation of the pre-existing injury to it;
[48][2006] VSCA 171
(b)the injury is a “serious injury”. The words “serious injury” are defined in s134AB(37) of the Act;
(c)the impairment or loss of the body function or the mental or behavioural disturbance or disorder must be permanent, which means likely to last for the foreseeable future;[49]
[49]Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at paragraph [33]
(d)the terms “serious” and “severe” in the definition of “serious injury” are determined by reference to the consequences of his impairment or loss, or mental or behavioural disturbance or disorder with respect to pain and suffering when judged by comparison with other cases in the range of possible impairments or losses or mental or behavioural disturbances or disorders;[50]
[50]Section 134AB(38)(b) of the Act
(e)an impairment or loss is not serious unless the pain and suffering consequence is, when judged by comparison with other cases in the range of possible impairments or losses, fairly described as being more than significant or marked, and as being at least very considerable;[51]
[51]Section 134AB(38)(c) of the Act
(f)the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purposes of paragraph (c) of the definition of “serious injury” and not otherwise.[52] The operation of paragraph (h) is explained by Maxwell P in Mutual Cleaning and Maintenance Pty Ltd v Stamboulakis.[53] It is useful to quote part of that paragraph:
[52]Section 134AB(38)(h) of the Act
[53][2007] VSCA 46 at paragraph [9]
“(1) Where an applicant for leave under s 134AB(16)(b) relies on physical injury — ‘permanent serious impairment or loss of a body function’ — the court in assessing the pain and suffering consequences must exclude ‘the psychological or psychiatric consequences’ of the injury: s 134AB(38)(h).
(2) Accordingly, so far as the evidence allows, the court must identify, and exclude from consideration, any pain and suffering consequences which cannot be shown on the balance of probabilities to have an organic or physical basis.
(3) The court must therefore exclude any pain and suffering consequences which result from or are a manifestation of:
• any recognised psychiatric condition (for example depression, adjustment disorder);
• chronic pain syndrome or disorder;
• functional overlay;
• exaggeration of symptoms, whether conscious or unconscious; or
• any other aspect of the injured person’s psychological response to the physical injury.”
(g)the physical consequences of a mental or behavioural disturbance or disorder are to taken into account only for the purposes of paragraph (c) of the definition of “serious injury” and not otherwise;[54]
[54]Section 134AB(38)(i) of the Act
(h)the word “severe” in paragraph (c) of the definition of “serious injury” is of stronger force than “serious”;[55]
[55]Mobilio v Balliotis [1998] 3 VR 833 at 846 per Brooking JA
(i)for loss of earning capacity consequence, Mr Wallis must prove a loss of earning capacity of 40 per cent or more, at the date of hearing and permanently. That is, a loss of earning capacity which produces financial loss of 40 per cent or more;[56]
[56]Section 134AB(38)(e)(i) and (ii) of the Act
(j)the loss of earning capacity is measured by comparing his gross income from personal exertion which he is earning whether in suitable employment or not, or capable of earning in suitable employment as at the date of the hearing, whichever is the greater, with the gross income he was earning or would have earned for that part of the three years before and three years after the injury as most fairly reflects his earning capacity had the injury not occurred;[57]
[57]Section 134AB(38)(f) of the Act
(k)Petkovski v Galletti[58] dealt with s93 of the Transport Accident Act 1986:
[58][1994] 1 VR 436
“…The Appeal Division held that, in the case of a pre-existing condition, ‘an analysis must be made of the extent of impairment of a body function before and after the relevant injury’, and the claimed aggravation must itself be a ‘serious injury’. … .”[59]
[59]AG Staff Pty Ltd v Filipowicz (2012) 34 VR 309 at paragraph [26]
(l)an expert witness must have a “fair climate” of assumed fact to give an opinion of value. In Paric v John Holland Constructions Pty Ltd,[60] Samuels JA adopted this passage from a Wyoming case:[61]
“… From our analysis of the record it appears to us that there was some evidence to support every hypothetical question to which objection was made. Such evidence was not always complete, was sometimes hazy as to time, distance and other vital words [scil points] but in general furnished a fair climate for the consideration of the views of the expert witnesses. … .”
(m)in O’Donnell v Reichard,[62] Newton and Norris JJ said:
“… It is sufficient to say that in our opinion for the purposes of the present case the law may be stated to be that where a party without explanation fails to call as a witness a person whom he might reasonably be expected to call, if that person’s evidence would be favourable to him, then, although the jury may not treat as evidence what they may as a matter of speculation think that that person would have said if he had been called as a witness, nevertheless it is open to the jury to infer that that person’s evidence would not have helped that party’s case; if the jury drew that inference, then they may properly take it into account against the party in question for two purposes, namely: (a) in deciding whether to accept any particular evidence, which has in fact been given, either for or against that party, and which relates to a matter with respect to which the person not called as a witness could have spoken; and (b) in deciding whether to draw inferences of fact, which are open to them upon evidence which has been given, again in relation to matters with respect to which the person not called as a witness could have spoken.”
[60][1984] 2 NSWLR 505 at 509
[61]The Wyoming case is Culver v Sekulich (1959) 80 Wyo 437 at 458. See also Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 at paragraph [64] per Heydon JA. I was also referred to Kovacic v Henley Arch Pty Ltd (2009) 22 VR 21 at paragraph [60].
[62][1975] VR 916 at 929
Discussion
104 Mr Wallis is a poor witness. He was definite about so little in his oral evidence. He said he had a poor memory. He told me that as he had told others before me. In the end Mr Wallis broke and could not continue, depriving the defendant of an opportunity to explore certain issues.
105 His Claim Form described the injury in somewhat technical terms. Naturally, the defendant’s senior counsel asked him about that:
Q: “Can you tell me this: how would you know – if this form is dated 6 June 2012; how would you have known that you had lumbar spine problems at L3-4 with disc bulge and a pinched nerve at L4-5? How would you even know what that meant?---
A:Ma, can you check this out? I don’t believe that’s my writing, from what I can vaguely see.”[63]
[63]Transcript page 37, lines 9-14
106 With three questions rolled into one, on paper, it might seem like badgering but they were asked pleasantly. After giving his answer to the next question, he broke down and I adjourned for lunch early. After lunch, his cross-examination resumed. Apart from not knowing what L3-4 or L4-5 meant, he was unhelpful about his claim. He did not remember suffering an injury to his lower back in October 2011 while travelling to Perth, visiting Dr Pozan or having x-rays and CT scans. He was read parts of his first affidavit. To each, he said he did not remember. Since he did not see Dr Pozan until July, his description in his Claim Form describing an injury in technical terms means he used language told to him earlier.
“Fair climate”
107 Despite that, Mr Wallis is not a dishonest witness. He remembers so little. For example paragraph 23 of first affidavit describes injuring back in October 2011 while lashing his truck on a trip to Perth. During cross-examination, he did not remember the incident. One cannot know how much of the contents of his affidavits come from his memory. They may be reconstructions coming from other sources. During cross-examination, he gave up trying to answer questions. His stock answer became he did not remember. Under pressure, he collapsed. There are examples in what he told doctors. He saw Associate Professor Doherty on 13 September 2017. He did not tell the psychiatrist of his injury on 29 October 2011, suggesting the reasons for stopping his interstate driving was due to not enough money and his wife being sick of the truck work.[64]
[64]Defendant’s court book at page 71S
108 His senior counsel submitted there was sufficiency in the other material. At the time, I thought it was a glib response but, on reflection, it has merit given the way these cases proceed. Many documents were admitted into evidence, the bulk of which were medical reports. Most contained histories. All contained descriptions of current complaints and treatments. I have examined those reports. Although there are inadequacies in some, each provides a “fair climate” of assumed fact for the opinions of the expert to be of value.
Jones v Dunkel[65]
[65](1959) 101 CLR 298
109 The mother of Mr Wallis did not swear an affidavit. She was not called as a witness, although available. Since 2012, he has lived with her. Oddly, she is cared for by another son, not Mr Wallis. She frequently comes to medical and other examinations with him. She frequently helps to fill in the many gaps in his memory. She was in the court room when he gave his evidence. One psychiatrist, Dr Kaplan, devoted a part of his report to her view about the change in her son before 6 June and afterwards. It should have been easy for her to put it on affidavit, for parents have done so in other cases in my experience. Oddly again, there was an opportunity to call her to give oral evidence but was expressly not taken up.
110 His mother attends some appointments. Her presence gives Mr Wallis support. Her absence explains why there was little or no rapport with Associate Professor Doherty while Dr Kaplan found the opposite. She fills in gaps. The picture of her is ambiguous. In July 2017, she was sixty two. She had suffered a heart attack and suffers from diabetes. Mr Wallis said her health is poor and he looks after her. To him, she is fragile.
111 Dr Kaplan asked her about her son and recorded her comments:[66]
“Mr Wallis’ mother described him as having previously been ‘Bubbly…easy-going. Help anybody – just that sort of personality – he was always doing something – always busy. Go fishing; camping. Just take off for [the] weekend…give anything a go’. She confirmed that he was even-tempered whereas now ‘He yells a lot. Gets frustrated. Gets angry. He’s constantly in pain…he says nasty things…he’s become antisocial… that’s nothing like he used to be.’ She stated that he was previously gregarious. She stated that he enjoyed cooking and now lost interest in that activity.”
[66]Plaintiff’s court book at page 119
112 Dr Kaplan relied upon what she told him. The contrast before and after 6 June was relevant to him and to me. Mr Wallis might reasonably be expected to call her as a witness and his failure to do so was unexplained. I am asked to infer her evidence would not have helped her son’s case. The written statement of what she says is favourable to her son’s case, not unfavourable. I am asked to draw an adverse inference where there is an unexplained absence in circumstances where she has made to another, favourable statements about her son. I would not infer her evidence would not have helped her son’s case. The fact that Dr Kaplan records what she said and she has not sworn an affidavit makes no difference.
113 The plaintiff’s senior counsel submitted that even if I inferred her evidence would not help her son, there was no analysis of which pieces of evidence I might or might not accept. It was left up in the air. Unfortunately, this is how these matters are often left. After reviewing the evidence, if I had been prepared to use it in a particular way, I may have reconvened the hearing so the parties could make submissions. However, I am not prepared to draw such an inference.
“Serious injury”
114 Mr Wallis had lower back problems well before October 2011. In that month, he injured his lower back again. He saw Dr Pozan. His back was x-rayed and scanned. His affidavit suggests he did not resume work until May 2012 when the defendant employed him. In his oral evidence, he says he did but that alone is not enough.[67] He did not see Dr Pozan in November because he was in Perth. Previously, his trucking job took him to Perth. On 19 December 2011, he was unemployed, for he told Dr Pozan so. His lack of memory would not affect his recall of immediate events. On 5 and 11 January 2012, he sought a Centrelink certificate from Dr Pozan and then wanted it changed. On 24 January, he says he is unemployed. On 16 March, the entry suggests he is not working but is looking for work, for Dr Pozan notes: “If working try 4 hrs/d for 3-5 days and see how the pain is before incr[ease] no of hours.” Disregarding Mr Wallis’ evidence, the evidence is sufficient to find that, despite looking, he did not get work until 7 May.
[67]Transcript at page 23, lines 26-27
115 Since Mr Wallis did not see a doctor after 16 March, there was no prescription of medicine. On 16 March, Dr Pozan prescribed Oxynorm in 10-milligram capsules and Amoxil in 500-milligram capsules. I do not know whether these prescriptions were filled and, if so, the capsules taken. However, I would infer his failure to see a doctor after 16 March was due to the condition of his back and there was no need to see his doctor or take medicines.
116 Although Mr Wallis says he stopped work after the 6 June injury, at least, on 6 June, he said he did not in his Claim Form. In his oral evidence, he said his brother helped him finish the shift that day.
117 Between 7 May and 10 July, Mr Wallis was off work for four days with two on 12 and 13 June and one on 9 July. Other than another day, he worked through June and into July. He says not. But he is so unreliable a witness, I prefer the inferences drawn from documents authored by Mr Luff. Normally I would not but Mr Wallis leaves a void.
118 Mr Gomes saw him on 13 June, seven days after the accident. Except for decreased sensation in the L5 dermatomes, there was normality from a neurological perspective. Implicitly, he saw Mr Wallis as being capable of working, for he recommended a lifting restriction. When dismissed, he was capable of working.
119 Mr Hooper was the first specialist to examine Mr Wallis after his dismissal. Not knowing of the October 2011 is immaterial at present. He saw a man walking very hesitantly with restricted flexion of the lower back and no extension. Despite restricted straight leg raising, there was no “hard” evidence of neurological signs. Mr Wallis had deteriorated since his dismissal and Mr Hooper saw a pressing need for proper pain management.
120 To Mr Francis, another surgeon, Mr Wallis was in pain and needed a psychiatric assessment. From the defendant’s perspective, this happened in May 2014 when Dr Douglas saw him. As with Mr Hooper, Dr Douglas recommended a pain management programme. He went to such a programme between April and August 2015. It made little difference.
Serious injury: physical injury
121 On 6 June, Mr Wallis suffered an aggravation of a pre-existing injury to his lumbar spine. Mr Wallis has proven that form of “injury”. Relying on Petkovski v Galletti,[68] the defendant submitted Mr Wallis could not prove the aggravation was a “serious injury”.
[68]Supra
122 Mr Wallis had back pain in 2006 and, again, in October 2011. The latter stopped him working. He was treated with medicines and physiotherapy. By 16 March 2012, he felt well enough to look for work although not finding any until 7 May 2012. He worked until 9 July when he was dismissed. Between June and July, he had four days off work. After his dismissal, he has not worked.
123 After 16 March 2012, he did not visit his doctor until July. If he took the medicines prescribed on 16 March, he did not seek new prescriptions. He did not visit his doctor immediately after 6 June, doing so in July. Instead, he saw Mr Gomes in an appointment arranged in January. When Mr Gomes saw Mr Wallis, he was not told of the 6 June incident. In his letter of referral, Dr Pozan spoke of worsening pain since October 2011. Mr Wallis did not tell him. I doubt Mr Gomes asked about any other incident. His Certificate of Capacity states “not known” to the enquiry: “Other details such as any aggravation or recurrence of a previous injury or a degenerative component.” I suppose he could have asked Mr Wallis, but did not, for his task was narrow, that is, advising Dr Pozan about treatment. No mention of the 6 June incident is equivocal and of no value to me.
124 The heavy lifting on 6 June caused pain in Mr Wallis’ back and legs. The nerve root sleeve injection made no lasting difference. CT scans in November 2011 found significant bulging at L5-S1. MRI scans show no appreciable difference between those of 17 January 2012 and those of 15 February 2013.
125 Mr Wallis leant forward in the witness box, so much so it was difficult to hear him speak. A version of this posture had been present from, at least, January 2012.
126 Dr Blombery is only specialist I have seen in these cases who speaks of “central sensitisation”, whereby non-painful stimuli is interpreted by the cerebral cortex as being painful. It is a physiological or organic condition, not a psychological one. In this case, there is indirect support for its existence. Over the years, Mr Wallis has been examined by orthopaedic and other specialists. As early as July 2013, Mr Francis was looking to psychological factors at play. Thereafter, expressions like “abnormal pain behaviours” or “marked emotional reaction component” or “learned pain behaviour” appear in reports. These practitioners saw an inconsistency between the level of pain complained of and the physical evidence including radiological. Except for Dr Blombery, those specialists see it as a psychological problem but none has the expertise to say it is psychological.
127 Dr Blombery saw Mr Wallis in July 2017. Although Mr Wallis was examined or re-examined by physical specialists after July, no-one comments on Dr Blombery’s diagnosis of central sensitisation. It was not raised in counsels’ submissions. As I point out below, none of the psychiatrists diagnose any form of pain disorder. There is no legitimate basis for me to reject that part of Dr Blombery’s diagnosis.
128 Mr Wallis is now very significantly disabled by pain. The pain limits his activities in many ways. The contrast between his state before 6 June and his state afterwards is very considerable. Immediately before, he was working full-time. He was looking for from, at least, 16 March. He was not taking medicines to relieve pain. Afterwards, he worked for just over a month with four days off and has not worked since his dismissal. Although he was off work the day before his dismissal, he was capable of working at the time of dismissal. When the condition of central sensitisation arose is unknown on the evidence. Nevertheless, it did arise and it is profoundly disabling. The consequences of the aggravation to his lumbar spine caused by the 6 June incident is the “additional injury” which constitutes a “serious injury” in terms of the pain and suffering consequences.
129 Although some of the practitioners saw evidence of an earning capacity, I have no doubt there is none on physical grounds. His experience of pain limits almost everything he does. It has eliminated much else. He walks poorly. Movements of his lower back are restricted. He leans forward when seated for pain relief. Perhaps, Mr Brownbill summed it up best in 2015:[69]
“… I consider from a physical neurological point of view on probability he would not be able to perform any employment for which he is suited in an ongoing or reliable fashion.”
[69]Plaintiff’s court book at page 92
130 I do not accept there are forms of suitable employment for him as variously identified by others. In terms of the Act, Mr Wallis has a loss of earning capacity of more than 40 per cent. This was so at the date of the hearing and it is permanent.
131 His physical condition is permanent.
Serious injury: mental disorder
132 In his opening, Mr Wallis’ senior counsel said the mental disorder was an Adjustment Disorder with Mixed Anxiety and Depressed Mood.[70] This is the diagnosis of Dr Al Humrany in 2015 and Dr Kaplan in 2017. Dr Douglas diagnosed an Adjustment Disorder with Depressed Mood in 2014. Associate Professor Doherty diagnosed an Adjustment Disorder in 2017. Ms Gasparis diagnosed an Adjustment Disorder with Depressed Mood in 2014. However, after many counselling sessions, she had changed her diagnosis to Major Depression with Melancholic Features.
[70]Transcript at page 5
133 If it is necessary to identify the mental disorder by name then I would accept the current diagnosis of Ms Gasparis. She has counselled Mr Wallis many times since 2014. She is in a much better position than any of the medico-legal psychiatrists to express opinions about his symptoms and the diagnosis. Dr Al Humrany did treat Mr Wallis for a short while. In view of the change of diagnosis of Ms Gasparis over the intervening years, I would not accept his 2015 diagnosis as the final word now. However, the categorisation is less important than the symptoms.
134 There is evidence of Mr Wallis suffering from mental disorders before 6 June 2012. His symptoms disclosed at the Broome Hospital in 2007 point to a significant problem related to using drugs. There is no reliable evidence as to how long those symptoms persisted. In any event, the next important event is the injury received in October 2011 and there is little evidence of psychological symptoms afterwards. Associate Professor Doherty could not diagnose a pre-existing psychiatric condition. I am satisfied there was none.
135 Ms Gasparis has seen Mr Wallis regularly since July 2014. Apart from the efforts of his general practitioners and prescribed medicines, she is his only form of treatment. By the time of her October 2014 report, Ms Gasparis had seen Mr Wallis four times and diagnosed an Adjustment Disorder with Depressed Mood, using the criteria in DSM-4. From a psychological perspective, he was constantly sad, irritable, had difficulty making decisions and concentrating for long.
136 By July 2017, Ms Gasparis was diagnosing a Major Depressive Disorder with melancholic features. She did not speak of the disorder as mild, moderate or severe even though DSM-5 does.[71] Her description of the symptoms must place it in the severe category. According to DSM-5,[72] there are nine diagnostic symptoms in criteria A. Mr Wallis has seven of them. He does not suffer from significant weight loss or gain or recurrent thoughts of death or suicidal ideation. A diagnosis requires five or more symptoms in this criteria. Comparing his symptoms in 2014 with those in 2017, there has been a worsening of his psychological condition despite years of counselling and treatment.
[71]Diagnostic and Statistical Manual of Mental Disorders (fifth edition) at page 188
[72]Diagnostic and Statistical Manual of Mental Disorders (fifth edition) at pages 160-161
137 Dr Kaplan accepted the reality of Mr Wallis’ complaint of pain. His psychological disorder was due to the pain itself and how it affected him. The larger impact on his capacity to work comes through the physical injury. Although significant, the psychological has a lesser impact. Dr Kaplan did not diagnose any kind of pain disorder.
138 Although I found some aspects of Associate Professor Doherty’s report puzzling. Mr Wallis emphasised pain heavily, yet, it did not reach the level of a pain-related psychiatric condition. Only one factor was mentioned: Mr Wallis driving himself from his home to the appointment. Associate Professor Doherty saw Mr Wallis stand with obvious pain-related behaviours but did not see abnormal movements. Despite the detail of the report, he did not describe the pain-related behaviours. The distinction is unclear. Nevertheless, Associate Professor Doherty did not diagnose a “pain-related psychiatric disorder”, nor did Dr Kaplan or Ms Gasparis. There is no basis for me to conclude there is. Professor Marshall spoke of “learned pain behaviour”. He referred to an article written by a psychiatrist. None of the psychiatrist speak of this condition. Assuming it is a psychiatric condition however described these days, its diagnosis is outside the expertise of Professor Marshall. I do not accept that it exists with Mr Wallis.
139 Ms Gasparis has treated Mr Wallis for four years. She had ample opportunity to assess him psychologically. His present symptoms show he has suffered a “serious injury” from a psychological perspective. She describes a series of symptoms which are “severe” for this purpose. They are wide-ranging. They have worsened over the years despite extensive counselling. They will persist indefinitely. This is so for pain and suffering consequences.
140 Looking at earning capacity from a psychological perspective, there is none. I could not conceive of anyone showing the symptoms described by Ms Gasparis having any capacity for work. He would be usually tired at the start of his working day because of insomnia. Throughout that day, he would be lethargic because he would be fatigued from the outset. Throughout the day, he would be less able to concentrate, think or make decisions. He would be depressed at work because he is almost always depressed.
141 While giving evidence, Mr Wallis broke down twice. He did not return after the second. He found the questions about his past difficult to answer. After a while, he stopped trying and gave up. His stock answer became: he did not remember. This was a working out of the weaknesses identified by Ms Gasparis. Even if he survived the interview stage for a new job, he would be quickly found out and be dismissed. Ignoring the pain and suffering consequences, he has no capacity for work from a psychological perspective. His loss of earning capacity is complete.
Conclusion
142 I will give permission to Mr Wallis to start proceedings for damages. I do so on the basis of pain and suffering and loss of earning capacity consequences. Each basis is established under paragraphs (a) and (c) of the definition of “serious injury”.
143 I will hear the parties on the form of orders and the issue of costs.
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