- Unreported Judgment
SUPREME COURT OF QUEENSLAND
CHAN KOROP TEP
PTY LTD ACN 71 065 220 831
7 September 2012
24-27 October 2011; 11 November 2011
Judgment for the defendant.
Employment Law – Liability at common law for injury at work – Particular cases
A Stobie for the plaintiff
R Myers for the defendant
McNamara & Associates for the plaintiff
MVM Legal for the defendant
 FRYBERG J: The plaintiff, Chan Korop Tep, sues his employer (“ATS”) for damages in respect of injuries which he claims he sustained at work as a result of his employer’s negligence and breach of contractual duty. Liability and quantum are in issue.
The alleged accident
 Mr Tep was injured in the course of his employment on 12 December 2007 while employed by ATS as a leading hand and carrying out demolition work on the Royal Newcastle Hospital. It is common ground that the substantive law to be applied, including the law as to the assessment of damages, is the law of Queensland.
The plaintiff's case
 Mr Tep pleaded that at about 9:30 am, on that day, he was using an angle grinder to cut a metal pipe suspended from the underside of the floor above that on which he was working. He alleged he was standing on a mobile scaffold which had been incorrectly assembled. “As he was working” he leant on a guard rail for support, whereupon it gave way and he fell backwards some 2.5 m to the concrete floor. Thereby he sustained his injuries.
 The pleaded claim was consistent with the description given by Mr Tep in an application for compensation dated 10 January 2008 and in a notice of claim for damages dated 12 September 2009. In the former, Mr Tep answered the question “How did the injury happen?”:
“I grab an angle grinder about to cut a pipe and I put my body to rest on the rail of a scaffold and it all came loosed [sic] and I fell with it.”
In the latter, Mr Tep responded to the requirement to completely describe the details of the event resulting in the injury:
“… [The claimant’s] job that day was to cut the asbestos pipes with an angle grinder. Scaffolding was assembled at the worksite to enable work to be done at height. The claimant was working on the scaffolding for approximately two (2) to two (2) and a half hours prior to the incident occurring. The claimant was cutting the pipe as instructed when he lent [sic] back on the scaffolding hand rail behind him to provide support whilst he was cutting. As he did so the hand rail gave way and fell to the ground. The claimant fell backwards with the hand rail approximately two (2) to two (2) and a half metres to the concrete floor below. …”
 Mr Tep came originally from Cambodia. He arrived in Australia when aged about 16 in about 1984 and was educated to year 10 at a Sydney high school. English was not his first language, but he could read, write and speak it. Having observed him in all phases of his evidence I am satisfied that he generally understood the proceedings and the questions which were asked of him, at least when those questions did not involve convoluted syntax. That said, he demonstrated occasional difficulty expressing himself during his evidence. He would have had similar difficulty in communicating with medical practitioners.
 Mr Tep testified that because of the asbestos in the building he was working in a sealed “bubble”. Before he cut any pipes he had to remove the ceiling tiles. (The pipes were in the ceiling cavity, fixed to the underside of the concrete slab above.) He did this work from a mobile scaffold. He inspected that scaffold before he started work, saw that it was “not right” and with the help of another man fixed it with parts dismantled from another scaffold. Removing the tiles took about one and a half hours. After the tiles were removed he obtained a higher scaffold to cut the pipes.
 With two exceptions, a higher scaffold would have looked like this:
Exhibit 6: Photo of scaffold
The two differences are that the higher scaffold described by Mr Tep had no vertical pipe projecting above the handrail and there was only one handrail above the platform, not two as in the photograph. He estimated that the platform of this scaffold was about 1.5 to 1.7 m from the concrete floor of the building.
 Mr Tep testified that after some time he got tired from cutting pipes and leant on to the railing of the scaffold, with his back to the rail. He immediately fell to the floor. When he woke up he felt pain everywhere. He looked at the scaffold and observed that one of the ends was hanging out and he noticed “they put the handrail inside out instead”. As a result it had opened like a door. He pointed that out to another leading hand, Mr Ouk. After some delay his workmates took him to the site doctor who recommended he be taken to the hospital. That was done. No one witnessed the fall and ATS made no systematic investigation after it.
 It is necessary to say a little more about the scaffold illustrated. In plan view it is rectangular in shape. Each of the shorter sides (or “ends”) has three elements. The central element comprises pipes welded together in the shape of an “H” with three horizontals instead of one. The bottom of each of the verticals is inserted into the second element, a wheel. Each wheel appears to have a brake. Into the top of the verticals is inserted the third element, a set of welded pipes in the shape of an H with two horizontals. The two ends are connected by pipes bolted to the horizontals. These connectors fall into two classes: horizontal connectors (“bearers”) and a variety of diagonal connectors or struts. No connectors of either class are bolted to the vertical parts of the ends of a properly assembled scaffold. At one level the ends are also connected by the metal platform which also is bolted onto the horizontals. In the illustration the platform has raised wooden edge pieces, doubtless intended to prevent objects falling off it. All of the struts are below the platform. Above the platform the horizontals act as railings.
 I find that the platform depicted in the illustration is about 1.5 m above the ground and that the horizontals are about 0.5 m apart. Scaffolds of different heights could be constructed by connecting the platform to the horizontals at different levels. In particular, a lower platform could be fixed at a level of about 0.5 m or 1 m (the separation between the horizontals in the ends). On such a scaffold the end components would not include the top element of the ends in the illustration. The higher scaffold described by Mr Tep would have been about 2.6 or 2.7 m high at its highest point.
 The distance from the floor to the under side of the concrete slab comprising the next floor up was not proved precisely. Two defence witnesses, Mr Ouk and Mr Chheng, estimated it at about 3 m. Despite that, defence counsel put it to Mr Tep, and he agreed, that the distance from the floor to the ceiling tiles was 3 m. He said that the [concrete] “ceiling” was “like, 600 cm more higher” and that is consistent with Mr Chheng’s evidence that the hangers for the ceiling tiles were a little over 500 mm long. I prefer the evidence of Mr Ouk and Mr Chheng. I think Mr Tep’s estimate was confused by the cross-examination on this point. I note that he said that the higher scaffold would not have fitted under the ceiling. If the ceiling tiles were 3 m above the floor, that would not have been correct. I find that the ceiling was about 2.4 m (8 feet) above the floor and the distance between the slabs was about 3 m. Mr Tep himself was about 1.7 m tall.
 It is clear from the photograph that if the accident happened in the manner described by Mr Tep, the scaffold must have been incorrectly assembled by attaching the railing to a vertical on the end section instead of a horizontal. It could not have been fixed to a horizontal outside a vertical; there was no such thing. Mr Tep testified in evidence-in-chief that he inspected the higher scaffold to make sure it was safe. In cross-examination he explained his failure to see the incorrectly fixed rail by reference to his limited vision as a result of having to wear full face mask and to the implied impracticability of inspecting each connection one by one. ATS did not allege any failure by Mr Tep properly to inspect the scaffold as contributory negligence.
The defendant’s case
 ATS pleaded a very different version of events. It asserted that the accident was caused by Mr Tep’s sitting on the rail of the scaffold while working, jumping from the scaffold to the ground and failing to wear his hardhat. It alleged that the scaffold was correctly assembled and that it was constructed in such a way that the rails could not separate. It denied that the guard rail gave way. It admitted that Mr Tep was employed by it and was working at the Royal Newcastle Hospital on the date of the alleged accident but did not admit that the accident happened in the way alleged by Mr Tep.
 At the trial ATS accused Mr Tep of fabricating his version of how the accident occurred. It contended that Mr Tep had been standing on the top rail of the lower scaffold when he fell and without objection adduced evidence in support of that contention. It submitted that Mr Tep's evidence of using a higher scaffold and of the rail opening like a door should be rejected. It contended that Mr Tep had given a variety of inconsistent versions of the accident at different times.
 ATS called three witnesses on liability. Mr Ouk was working with a different group from Mr Tep some distance away from him. He testified that about 15 minutes before the accident he saw Mr Tep on a scaffold using an angle grinder to cut pipes. The platform of the scaffold was about 1.5 m from the floor. At that time Mr Tep was standing on the one hand rail of the scaffold, leaning against a column which was next to the scaffold. Mr Ouk said he warned Mr Tep that this was very dangerous and told him that if he wanted to cut the pipes he should upgrade the scaffold to a higher level. Mr Ouk said that Mr Tep said that he could not find the parts to extend the scaffold. He (Mr Ouk) then went and got those parts. With the assistance of a Mr Peter Ward he brought them back to where Mr Tep was working and left them on the floor beside the scaffold. Mr Tep said he would “go down and come to get it”. Mr Ouk left to go back to his group.
 Some 10 or 15 minutes later Mr Ouk heard that Mr Tep had had an accident. He returned to where Mr Tep was working and asked him if he was all right. Mr Tep replied that he had hurt his head, but said that he was all right. He said he had fallen from the scaffold. He did not complain that there was anything wrong with the scaffold and Mr Ouk saw nothing amiss. Mr Ouk suggested that he have a shower and prepare to go to the hospital for a checkup.
 Mr Chheng (who, like Mr Ouk, gave evidence through an interpreter) was a member of Mr Ouk’s group. He was working on the floor of the room, cutting metal pipes, at the time of the accident. The room was quite large (Mr Ouk estimated it to be four times the size of the court room). From where he was Mr Chheng could have seen Mr Tep had he looked up, but he was concentrating on his job. He looked up when he heard that someone had fallen and saw Mr Tep sitting on the floor rubbing his head. He asked Mr Tep if he was okay and he responded, “Yes, I'm okay.” Mr Tep said nothing about a broken scaffold or a failure of the scaffold. Not long afterwards he left the area.
 Mr Chheng continued and finished cutting the pipes on the ground. His next task was to remove the hangers, the straps which had held up the ceiling (the ceiling tiles had all been removed). These straps were attached to hooks embedded in the concrete roof. In some cases they could be removed simply by taking hold of the lower end and unhooking them, but others had to be cut using a grinder. To remove the hangers he used the scaffold, which was at most eight or 10 m from where he had been working and in his line of sight. No one had altered it since the accident. There were two or three other scaffolds on the floor but they were quite far apart. He inspected it before climbing up. None of the handrails was detached. When he stood on the platform of the scaffold the bottom end of the hangers was about a hand’s width above his head and he was 171 cm tall.
 Mr Chheng explained that the asbestos was compressed onto the beam beneath the floor above. After the hangers were removed he and his workmates had the task of removing the asbestos. To do that they extended the scaffold higher. There were extension parts on the ground near the scaffold at that time.
 Mr Koy was a supervisor at the site. He worked on the ground floor, outside the bubble. After the accident he saw Mr Tep outside the bubble and invited him to sit down. Mr Tep asked for a cigarette. Mr Koy asked if he was all right. Mr Tep said his head hurt a bit but he was okay. Otherwise he showed no sign of pain or disability. He said he did not want to go to hospital. He said nothing about a malfunction of the scaffolding. Mr Koy was with Mr Tep for five or 10 minutes.
 On the day following the accident, before he flew back to Brisbane, Mr Tep stayed at Mr Koy's house. Mr Tep at that point showed no sign of pain or disability and was walking normally.
Findings on credit and consequential findings
 Not surprisingly Mr Tep submitted that there were multiple difficulties with the evidence of Mr Chheng and Mr Ouk. Three such difficulties were identified in the case of Mr Chheng.
 The first difficulty was that Mr Chheng was first asked to recall the events of 12 December 2007 only during the week before the beginning of the trial. It was submitted that his recall was remarkable, given the lapse of almost four years since the accident. Such a lapse of time must create difficulty for a witness in remembering events, particularly in relation to matters of detail. However Mr Chheng’s evidence was not particularly detailed and where he could not remember something he said so. I think to describe his recall as “remarkable” overstates the position. It was not suggested that he fabricated his evidence – merely that he was mistaken. The lapse of time must be borne in mind in assessing his evidence, but I do not think it a major factor in assessing his credibility.
 The second difficulty was said to be uncertainty in his evidence as to timing. I observed no such uncertainty. It is true that he was not asked how long after the accident he used the scaffold, but that did not render the evidence which he did give uncertain. The context suggests that his use of the scaffold occurred before the next work break, which would have been lunch. Mr Tep submitted that the possibility that some other person had, during this period, put the handrail back into place must be countenanced. I take that possibility into account, but it seems most unlikely that anyone would go to the trouble of assembling the scaffold unless he was intending to use it.
 The third and most serious difficulty proposed was said to be that Mr Chheng’s evidence suggested that he had not correctly identified the scaffold from which Mr Tep fell. Mr Tep submitted that the scaffold which Mr Chheng used must have been the lower one used earlier in the day by Mr Tep to remove the ceiling tiles. The basis of that submission was that if, as a number of witnesses stated (and I have accepted) the underside of the slab forming the floor above was about 3 m above the floor, Mr Chheng's head on his own evidence must have been about 2.2 m above the floor. As he was about 1.7 m tall, he must have been standing on a platform only 0.5 m above the floor. His estimate that the platform was about the height of his shoulder must have been wrong.
 That reasoning is in my judgment correct. The question is, what conclusion flows from it. One possibility is that for which Mr Tep contends. The other is that Mr Tep did not tell the truth about getting a higher scaffold; he had continued using the lower one. I must reach a conclusion without the benefit of having heard Mr Chheng's answer to the proposition that he had not used the same scaffold as Mr Tep, for that proposition was not put in cross-examination.
 The critical part of Mr Ouk’s testimony was his evidence of having seen Mr Tep standing on the railing of the scaffold 10 or 15 minutes before the accident. Mr Tep submitted that Mr Ouk’s description depicted a situation so precarious and unsafe as to be barely achievable even for a short time. The basis for the submission was:
“The evidence was that the grinder was a heavy piece of machinery – 10 to 15 kg – and required the use of two hands. The handrails of the scaffold were narrow round tube (Ex 6) and could only provide a slight foothold. Mr Ouk maintained that the plaintiff braced himself with his left shoulder leaning on a column; the column was hard up against the scaffold (T3-55 L51 – T3-56 L6). That would place the left foot on the handrail, the left shoulder probably directly above it, and the right foot on the adjacent (at right angles) hand rail (or horizontal rail), and necessarily at some distance from the left foot and shoulder. That indicates a contorted position, and one scarcely achievable let alone permitting the overhead (or at least elevated) use of a heavy power tool.”
 With great respect to counsel, the submission is in my judgment overstated. I accept that the situation depicted was precarious and unsafe, but it seems to me that it would have been perfectly achievable and for more than a short time, albeit with slightly bent knees. Moreover, once he was braced against a concrete column I see no reason why Mr Tep would have been unable to use an angle grinder. If he was using a scaffold with the platform at 0.5 m from the floor, the railing would have been at about 1.5 m. A pipe at about 2.8 or 2.9 m from the floor would have been at head height, given that Mr Tep would have had to bend his knees slightly, but would still have been able to be reached with a grinder.
 It was sought to reinforce this submission with the proposition that had Mr Tep been standing as described by Mr Ouk, he would have fallen forwards rather than backwards as he did. That submission cannot be accepted. It assumes the conclusion, namely that Mr Tep's version that he fell backwards is correct.
 The difficulty with Mr Ouk’s evidence is that he estimated the height of the platform on the scaffold on which Mr Tep was working as being 1.5 m above the floor. If that were correct, Mr Tep would have been standing on a rail 2.5 m above the floor under a slab which was about 3 m above the floor, which I find incredible. Either the platform was 0.5 m above the floor or Mr Ouk’s evidence was a figment of his imagination.
 In support of the latter alternative Mr Tep relied upon ex 22. That document was apparently created by a Mr Dove, a private investigator engaged on behalf of WorkCover. Neither side called him to give evidence. It seems that he interviewed Mr Ouk without an interpreter on 10 January 2011. There is no evidence of when he created the document. It is unsigned and there is no suggestion that it was ever shown to Mr Ouk. In any event to have done so would have been pointless, for as Mr Ouk said in his evidence, he was unable to read it. Mr Ouk had limited spoken English, but there is no suggestion that Mr Dove read the document to him. The evidence is insufficient for me to conclude that Mr Ouk said the things attributed to him in the document during the interview. I shall not rely on it save to the extent that its contents were adopted by Mr Ouk during his testimony.
 Paragraph 10 of the document was read to Mr Ouk by the interpreter during cross-examination. Commenting on that paragraph he accepted that he was not working close to Mr Tep and could not observe him from where he was working. He agreed that he only saw Mr Tep when he was on the floor. Then the following exchange ensued:
“MR STOBIE: You didn't see him on the scaffold at all before that, did you?
INTERPRETER: I saw him stand on the handrail and I ask Mr Tep to help me to get a handrail to get up to higher place.
MR STOBIE: The next bit, ‘My understanding was that he fell the estimated distance of 2 metres.’ That's correct, isn't it?
INTERPRETER: Yeah, approximately about 2 metres.
MR STOBIE: The next bit, ‘Which to me would tend to indicate he might have been standing on the upper handrail area at the time.’ Is that correct?
INTERPRETER: That's correct.
MR STOBIE: So you just guessed that he would have been standing on the upper handrail at the time; is that correct?
INTERPRETER: No, it's not correct. I'm not - I have a witness to indicate that I saw him stand on that one.
MR STOBIE: Mr Ouk, someone told you that Mr Tep fell a distance of 2 metres; is that correct?
INTERPRETER: No, it's not true because I work approximately 20 metres away from him and only someone come and told me that Mr Tep fall down.
MR STOBIE: Yes, and he told you that Mr Tep fell 2 metres?
INTERPRETER: I saw him stand on the handrail approximately 2 metres and I took some equipment for him to extend the handrail, but he didn't extend the handrail.
MR STOBIE: I'm suggesting none of that is correct and you just guessed that he was standing on the handrail?
INTERPRETER: No, it's not correct. It isn't true because I went to get some equipment for him to extend the handrail.”
Mr Ouk agreed that he had not mentioned that he saw Mr Tep standing on the handrail to Mr Dove. He said that Mr Dove did not ask him about that.
 For Mr Tep it was submitted that Mr Ouk’s view that Mr Tep must have been standing on the handrail was pure supposition based solely on a report that he had fallen 2 m. That conclusion is impossible unless one reads the exhibit as a statement adopted by the witness as a complete version of all relevant events. That it was not. There is no support for the submission in Mr Ouk's evidence. I reject it.
 Assessing Mr Ouk's credibility is not an easy task given his cultural and linguistic differences from the Australian norm. I can see no reason why he should have lied or imagined what he said. What he saw was memorable. Moreover one would expect that if he had any bias it would be in favour of his co-worker. Nothing was put to him to suggest any motive for falsehood. His evidence of bringing extension parts for Mr Tep to use is corroborated to some extent by Mr Chheng’s evidence of such parts being on the ground near the scaffold when he later needed to raise the scaffold.
 I turn to Mr Tep. His evidence conflicted with that of Mr Ouk and Mr Chheng in significant ways. As Mr Tep's submission demonstrated, Mr Chheng must have used a scaffold with a low-set platform to remove the hangers, and he testified that the scaffold he used was that which Mr Tep had been using at the time of the accident. Mr Tep swore that he was using a scaffold with the platform set higher. Mr Ouk swore that he had seen Mr Tep standing on the rail of a scaffold with what must have been a low set platform. Mr Tep denied that Mr Ouk had brought him any extension parts. He swore that after the accident he had pointed out the faulty railing swinging like an open door on the scaffold to Mr Ouk. Mr Ouk denied that.
 The position of the railing after the accident assumes some significance because the version given by Mr Tep in evidence was not consistent with the versions which he had given in 2008 and 2009. Then he said that the rail had fallen with him.
 The notice of claim for damages is significant also because Mr Tep stated that he had been working on the scaffolding for 2-2½ hours before the incident. On that version he must have mounted the scaffold soon after he arrived at work. There was no mention of any change of scaffold during that period, nor was there any mention of removing the ceiling tiles prior to using an angle grinder. By the time of the trial Mr Tep was aware of the need to account for the removal of the tiles:
“MR MYERS: Now, do you see if we go to the third line, ‘The claimant was working on the scaffolding for approximately two to two and a half hours prior to the incident occurring. Do you see that?-- Yes.
And is that true and correct, were you on this particular scaffold, or piece of scaffolding, for two to two and a half hours before the accident?-- No, not that long.
Well, how long do you say you were working on this scaffold before what is described as the incident occurred?-- Around 45 minutes to one hour.
Well, why did you say that you were there for well in effect two and a half times as long or even three times as long?-- Because, first of all, I had to remove the ceiling tile.”
He was also aware that the higher scaffold would not fit under the ceiling tiles. He said that the two to two and a half hours referred to the time for which he had been working.
 Mr Tep's attention was drawn to his signed declaration that all statements made in the notice that were within his personal knowledge were true, correct and complete in every respect. He acknowledged that he had read that declaration before he signed it. At first he sought to explain the discrepancies in the document on the basis that probably he had not read through everything because he was “sick and hurt”. He denied going to his solicitors’ office to sign it and claimed that he did not know if he had a solicitor at that time. He said that if he had a solicitor he would have told him what happened. Asked specifically if he read the document itself before he signed it to ensure it was telling the truth, he responded, evasively, “Well, I was telling everything the truth, that the scaffold that fell down and come with me, I don't think I would say that.” He then acknowledged that his declaration had been witnessed by his solicitor, Mr Bruce.
 Mr Bruce was present in court during the trial. He was not called to give evidence about the making of the notice or the instructions which had been given to him for describing the incident. I infer that nothing he could have said would have assisted Mr Tep's case.
 In the light of the foregoing evidence I have come to the conclusion that I should accept Mr Chheng and Mr Ouk as truthful and generally accurate witnesses, although I acknowledge that neither could have been correct in his estimate of the platform height on the scaffold about which he gave evidence. I find that Mr Tep did not draw Mr Ouk’s attention to a free-hanging rail and that his evidence to that effect was false. I find that the scaffold used by Mr Chheng to remove the hangers was the same one as had been used by Mr Tep throughout the morning of the incident. The platform on it was fixed at 0.5 m from the floor. Shortly before the incident Mr Tep was standing on the rail of the scaffold using the angle grinder, and I infer that this was where he was standing at the time he fell.
 It was not contended that on the basis of those findings any negligence or breach of contract could be attributed to the defendant. It follows that it must have judgment in the proceedings.
The plaintiff's alleged injuries
 I am still obliged to assess Mr Tep's damages. In the circumstances I shall state my reasons as briefly as possible.
 Mr Tep pleaded that he suffered the following injuries:
“(a)Fracture of the skull involving the left occipital bone;
(b) Traumatic brain injury;
(c) Post-traumatic headaches;
(d) Injury to the cervical spine;
(e) Injury to the back;
(f) Psychological injury.”
 He further pleaded:
“17.On account of his injuries, it was necessary for the plaintiff to seek and receive medical treatment, including his in-patient hospitalization at the John Hunter Hospital in Newscastle. He was administered analgesics to relieve his pain. He underwent physiotherapy. He continues to suffer from headaches, neck pain and low back pain. His faculties of memory and concentration have been adversely affected. The plaintiff’s suffering his physical injuries and their consequences have caused him to develop a psychiatric illness since diagnosed as an Adjustment Disorder and a Chronic Pain Syndrome. His capacity to participate in many of his former activities has been diminished and impaired or lost altogether. He has suffered a permanent impairment of bodily function.”
 Mr Tep testified that following the fall, when he woke up, he had pain everywhere. After some delay he saw the on-site doctor and then he was taken to hospital. There he was strapped to a bed and a brace was placed on his neck. He had a really bad headache and his back was all numb. He could not move his neck. At the time of trial he still suffered pain in his lower back, his neck and the back of his head, although not as severe as immediately after the accident. The pain in his neck was always present and was worse in winter. Sitting and watching TV or moving his neck a lot aggravated it. He suffered headaches on average twice a week, lasting for a day or two. It was the same with his lower back. Stretching bending and lifting made the pain worse. His days were boring and he was depressed. He had become forgetful and would forget to pick up the children from school on occasions. He was taking a lot of medicines but they did not seem to help much. He had tried to go back to work on one occasion but all he could do was stand dizzy and in pain. Otherwise he had not worked since the accident. He tried for a job as a bus driver but failed the medical test:
“And do you know why you failed the medical test?-- Because they make me stretch and I try to hide the pain and they tell me, ‘You are trying to hide the pain, I can see it in your eyes,’ so I know I fail straight away.”
He survived on Centrelink disability benefits. His drinking had become heavier since the accident; he would get drunk before going to sleep two or three nights a week. He had been given medication for depression but it had not helped much.
Head and back
 Mr Tep was examined by Dr Gillett, an orthopaedic surgeon, on 23 June 2009 at the request of his solicitors, but at the trial the doctor was called by the defendant. His report refers to uncontroversial evidence that Mr Tep sustained a linear fracture of the skull (occipital). He was taken to hospital on the day of the fall and admitted overnight. He complained of pain in the neck and lower back. X-rays of the cervical spine showed some degenerative changes. These were also evident in x-rays taken on 17 January 2008. The CT scan on the same date showed the fracture of the left occipital was healing.
 Dr Gillett reported that MRI of the full spine showed no evidence of fracture, but evidence of degenerative changes. Mr Tep told him that he had pain in his neck radiating to his head with some symptoms in the left arm and wrist area, and pain in the lower back associated with the whole of the left leg being painful. Bending and lifting were impossible and sitting, standing and walking caused pain.
 Dr Gillett expressed the opinion that there had been acute pain and suffering related to the head injury and the neck and lower back injury, but that at the time of examination Mr Tep presented as a person chronically disabled by pain. He self-reported depression. Dr Gillett thought his presentation showed him to be a person with “abnormal illness behaviour presentation” and recommended a psychiatric opinion be obtained. Impairment assessment could not be undertaken in relation to the neck and lower back as the examination findings were relatively inconsistent and related to pain in a person with that presentation. Operative intervention was not required. Orthopaedically his injuries would not deteriorate and he should be able to undertake a variety of occupations. The disabilities he described were greater than one would expect from his injuries, which should only require simple analgesics in the long term.
 Having been shown covert video recordings taken of Mr Tep in October 2009, January 2010 and April 2011, Dr Gillett testified that he could not find any organic pathological process to cause the gait abnormality evident in the recording.
 Mr Tep was examined by Dr Todman, a neurologist, on 22 May 2009. Based on Mr Tep's self-reporting of pain, the history of the incident and the radiological evidence already referred to, Dr Todman diagnosed a mild traumatic brain injury consistent with memory and cognitive symptoms after the accident and not negated by the normal MRI brain scan. He thought the headaches complained of were of a muscle tension type commonly encountered in cervical spine injuries. He assessed an 8% whole of person disability resulting from the cervical spine injury, an additional 3% disability from the frequent post-traumatic headaches, and 8% impairment from the lumbar spine symptoms and a 7% impairment from the mild traumatic brain injury. He reported that the symptoms would preclude Mr Tep from returning to the workplace and resulted in a need for domestic assistance of up to four hours a week.
 Called to give telephone evidence by Mr Tep, Dr Todman disclaimed any concern that his testing of Mr Tep's range of movement might have been unreliable because of an exaggerated response. Unfortunately he had not been provided with reports of other practitioners made after May 2009, in particular of a neuropsychologist. Why Mr Tep's solicitors failed to do this was not explained. It seems that no attempt was made to have him update his report to bring it into compliance with the requirements of the Uniform Civil Procedure Rules. Under cross-examination he said that he thought the disc protrusion evident in the lumbar spine was more likely related to the fall than any other factor, but that there were only age-related changes in the cervical spine. He was not asked in terms to comment on the first report of Dr Reid, which he did have. Apparently he had not been shown the video recording.
 Overall I found Dr Todman’s evidence of limited assistance.
 Mr Tep was examined at the request of WorkCover by Dr Reid, a neurologist, on 17 April 2008. Dr Reid reported, among other things:
“He held his neck like a ram rod and appeared to have a considerable amount of voluntary neck muscle spasm. He had an extremely limited range of forward neck flexion and lateral rotation. He had absolutely no range of neck extension.
Mr Tep holds his back very stiffly. He indicated agonising back pain and had virtually no range of forward back flexion.”
Under the heading “Clinical Impression” she wrote:
“On 12 December 2007 Mr Tep sustained a fall in the workplace. He fell on to his back. There was no loss of consciousness. CAT scan revealed normal brain but there was evidence of an undisplaced occipital fracture.
Using recognized benchmarks Mr Tep sustained a mild head injury from which he had made a full recovery and there is no evidence of any organic sequelae.
In the fall Mr Tep probably sustained soft tissue strain to the supporting structures of his spine and may have experienced a temporary symptomatic aggravation of his underlying pre-existing constitutional spinal degenerative disease.
There is no evidence that Mr Tep sustained a more serious injury to the bones, discs, spinal cord or nerve roots of his spine.
Four months have now passed and Mr Tep has had a protracted period off work with a variety of modalities of appropriate treatment. After this period of time I would have anticipated that any soft tissue spinal pain would have settled and ceased. Furthermore I believe that any symptomatic temporary aggravation of his underlying spinal degenerative disease would have also settled and ceased.
Mr Tep is taking an unusual clinical course reporting intractable pain indicating agonizing discomfort at the consultation with an extraordinarily limited range of spinal movement.
It is my view that Mr Tep has overvalued his injury and is now over presenting.
I believe that Mr Tep has had more than adequate time off work and more than adequate WorkCover funded treatment and rehabilitation. At this stage he should have reach maximal medical improvement. I am not convinced that Mr Tep remains incapacitated in relation to the effects of his soft tissue spinal injuries and I do not believe there will be any assessable impairment. He should be encouraged to shed his sick role and to return to work on a suitable duties programme. The only restriction in the first place should be avoidance of heavy lifting.”
 Dr Reid also gave evidence by telephone on behalf of the defendant. As with Dr Todman there had been no attempt by the solicitors to update her report or bring it into compliance with the provisions of the Uniform Civil Procedure Rules. There was no sign that she had been shown reports by other practitioners and she was not asked to comment on the opinions of others. She had not viewed the video recording. I thought she was rather dogmatic and inflexible.
 I found her evidence also of limited assistance.
 WorkCover sent Mr Tep for examination by a second neurologist, Dr Ohlrich. I was given no explanation of why two different specialists in the same field were engaged. On its face, engaging two specialists in the same field is contrary to the philosophy embodied in r 5 of the Uniform Civil Procedure Rules. I shall hear the defendant on why its costs of calling Dr Ohlrich should not be disallowed.
 Dr Ohlrich examined Mr Tep on 30 September 2010, the most recent of the four practitioners under this heading. He was provided with an extensive list of documents not all of which were put into evidence. He reviewed those documents before writing his report. The report itself is written on letterhead of a company for which Dr Ohlrich apparently works, called Medilaw Pty Ltd. The letterhead is overtly self-promotional, proclaiming that the company provides “Independent Medical Examiners” for (among others) legal firms and the insurance industry. The slogan “the balanced opinion” appears on it twice. The accompanying abbreviated CV shows that Dr Ohlrich has been heavily involved in periodic court appearances as an expert witness for many years and has worked on WorkCover Tribunals since 1979. To what extent, if any, he sees patients for treatment is not disclosed.
 Dr Ohlrich’s conclusions were expressed in the following terms:
“Mr Tep sustained a work injury on 12 December 2007 when he fell from scaffolding two to two and a half metres onto concrete. Although he was shown to have a linear fracture of the occipital bone, the details of this head injury would indicate that from the neurological perspective it could be classified as mild. Such an injury would not have been associated with any brain damage and this has been confirmed by the normal MRI brain scan.
I do not consider that his complaints of forgetfulness and memory problems are due to any brain injury from this incident.
Also as a result of the fall he sustained a soft tissue injury to his lumbar spine and perhaps to his cervical spine. There may also have been some temporary aggravation of pre-existing degenerative disease of the lumbar spine and cervical spine.
My assessment revealed a marked over-presentation with inappropriate and variable signs as I referred to under ‘Clinical Examination’ above.
The imaging studies have shown pre-existing degenerative disease in the lumbar spine and cervical spine. This may have been temporarily aggravated by the subject work injury. I would have expected that any pain from such an injury to have settled within a matter of weeks to a few months.
I do not consider that any of his present complaints are due to any physical injury from the subject incident.
He does seem to be very stressed and distracted and psychological factors are probably important in his presentation.”
Under the heading “Impairment”, Dr Ohlrich wrote:
“I have assessed him according to AMA5 methodology.
Mild head injury
Although this resulted in a fracture of the occipital bone, from the neurological perspective this head injury could be classified as ‘mild’. He has not sustained any brain damage from this injury and this has been confirmed by the normal MRI brain scan.
Soft tissue injury to his lumbar spine and possible temporary aggravation of pre-existing degenerative disease of the lumbar spine
I have used Table 15-3, page 384 (AMA5). My assessment revealed no significant clinical findings, no muscle guarding or spasm and no documentable neurological impairment. There were no radicular complaints. Range of motion could not be assessed because of unreliability. He is therefore in a DRE lumbar category 1 which equates to a nil permanent impairment.
Soft tissue injury to the cervical spine
I have used Table 15-5, page 392 (AMA5). My assessment revealed no significant clinical findings, no muscle guarding or spasm and no documentable neurological impairment. There were no radicular complaints. Assessment of range of motion was unreliable but he moved his neck freely during the interview process. He is therefore in a DRE cervical category 1 which equates to a nil permanent impairment.”
 Called by the defendant, Dr Ohlrich expressed his opinion on the video recording of Mr Tep. He described Mr Tep in March 2011 as “walking quite normally for an indefinite distance”. The only explanation he could think of for Mr Tep's presentation to him was that he was exaggerating his disability. He was cross-examined about this, but remained unshaken. The same is true of the cross-examination relating to his report. By the end of the cross-examination he had not been asked explicitly to address the differences of opinion between him and Dr Todman. I therefore raised them with him:
“You've seen Dr Todman's reports?-- I don't have them with me but I have, I have seen them, yes.
I can happily pass them to you, if you'd like. Could you just summarise for me as clearly as possible where you and he digress?-- Well, I'm just looking at his conclusions on page 4: ‘He sustained a head injury with loss of consciousness’. I don't know that the loss of consciousness was ever objectively shown to be the case.
… Well, obviously we disagree quite substantially in the – ‘The closed head injury has been associated with memory and cognitive symptoms.’ I don't know that there's any basis for his statement in that regard, ‘and is it consistent with a mild traumatic brain injury’, I suppose-----
Is there anything earlier in his report that would indicate a basis for it?-- No. I mean, I read these reports from Dr Todman all the time and there's a certain sameness about it. I agree with his opinion that the normal MRI brain scan doesn't negate the diagnosis, but it's more evidence against. Again, I don't agree with his page 5 of 8 per cent impairment. I mean, that's the usual statement that Dr Todman attributes to these injuries, 8 per cent for cervical spine, 8 per cent for the lumbar spine and 3 per cent for headaches. I don't agree with that being the case.
Yes, I realised that. I'm just trying to identify what part of the reasoning that leads to that differs from your referring?-- Well, I don't - my - I'm trying to sort of look at this situation objectively. I'm looking at the nature of the injury. I'm looking at the fact that we're three years on. I'm looking at the inconsistency of the physical findings. I'm looking at the exaggerated presentation of the patient. I'm looking at the fact that he's got a reasonably normal range of movement of his cervical spine in the interview process when he's distracted. I'm looking at the fact that he's got a good range of lumbar flexion when he's distracted again.
You say those factors are not evident in Dr Todman's report?-- Dr Todman says that his cervical spine movements are restricted by 40 to 50 degrees in each range of movement. To me that's a symmetrical loss of range of movement. He frequently says that, and I pointed out to you that - the importance of the asymmetry of the loss of range of movement which accompanies muscle spasm. I don't agree that there was muscle spasm. I just don't agree with his findings.”
 Those strong expressions of opinion made it all the more desirable for the differences to be identified and examined. I proposed to counsel for the plaintiff that Dr Todman be recalled the following day and that concurrent evidence be given by both doctors. I was told that Dr Todman was not available. There was no application to reopen the plaintiff's case or for an adjournment.
 Dr Ohlrich had examined Mr Tep nearly three years after the incident. I found it the most persuasive evidence available to me on this aspect of the case. I am satisfied that the fall caused Mr Tep some relatively short term pain in his back and neck and made symptomatic the degeneration in his back which had not previously troubled him. I am not satisfied that he suffered any permanently disabling injury, nor that his aggravated symptoms were as disabling as he claims. Whether his condition would in any event have become symptomatic was not the subject of careful examination in the evidence. I am prepared to assume that apart from the accident, the symptoms would have remained quiescent.
 Mr Tep attended psychologists and psychiatrists.
 Mr Stoker, who described himself as a clinical, sport and forensic psychologist, interviewed Mr Tep at the request of his solicitors on 20 August 2009 in the presence of an interpreter. Subsequently Mr Tep completed a number of psychological tests for Mr Stoker. Under the heading "Behaviour at interview" he reported that Mr Tep presented as a person of depressed and anxious mood and exhibited pain behaviour. He complained of being depressed, stressed, angry and suffering a poor memory. He had chronic fluctuating pain in the neck and back, decreased concentration and had lost motivation. Testing indicated that he had borderline mentally retarded intelligence (bottom 6% of the population). It also indicated he was suffering severe depression and severe levels of anxiety. Mr Stoker reported his opinion that as a consequence of the accident, Mr Tep was suffering an adjustment disorder with mixed depressed and anxious mood. He recommended 20 sessions and psychological counselling. He also reported his opinion that Mr Tep was suffering from a pain disorder due to psychological factors and a general medical condition, namely neck, back pain and headaches. He described that in other words as a chronic pain syndrome which was being exacerbated by his depression, anxiety and anger.
 Under cross-examination on behalf of ATS Mr Stoker testified that when asked if he was knocked out, Mr Tep said no. He agreed that Mr Tep's performance in the intelligence test was abnormally low if his self-report that he was a good student, did reasonably well at school and could read and write was true. He also disclosed that he had been provided with a report by a Dr Ewing who had also done a lot of testing and noted that Dr Ewing reported it unlikely that Mr Tep was experiencing persistent cognitive deficits attributable to brain injury.
 Ms Jackson described herself as a clinical neuropsychologist. She saw Mr Tep at the request of WorkCover on 22 and 30 October 2009. He did not present with an interpreter and did not require one. She was provided with a number of reports by other professionals and took particular note of those of Dr Reid, Dr Todman, Dr Gillett and Mr Stoker. She reported difficulty in making a neuropsychological assessment of Mr Tep:
It was intended to interview and administer a standard battery of neuropsychological tests to Mr Tep over a 4-5 hour period on 22 October 2009. Mr Tep presented to this session alone but with complaints of significant pain and discomfort and severe pain on sitting and standing (and hence inability to assume a stationary posture for any significant length of time to enable accurate assessment). On interview, his responses to questions were interspersed with neck stretching and pronounced gagging and swallowing.
On initial testing Mr Tep made ongoing complaints of soreness and stiffness in his neck and an inability to concentrate or focus. He attempted to perform a simple paper and pencil visuo-motor speed task but was unable to proceed longer than about 30 seconds. He attempted to copy a complex figure (which he did) but the duration of his task execution was very slowed and effortful. Throughout this Mr Tep continued to extend his leg outwards behind him and assumed what looked like an uncomfortable position. When questioned about this he complained that he was in intense pain and could not sit ‘normally’ without pain. At times he gagged spontaneously. At this stage it was suggested and agreed that Mr Tep would return for a subsequent session to resume testing.
Mr Tep presented to the second assessment on 30 November 2009. He had caught a taxi to the centre. He made complaints of the distance travelled and his discomfort at sitting in the taxi for the prolonged period.
Testing resumed with Mr Tep continuing to display exaggerated posture and movement and with reports of ongoing pain. He was able to complete some tests of intellect but with lengthy duration. Given the question of credibility of his presentation it was decided not to proceed further with memory and/or executive functioning testing.”
She found Mr Tep's pain behaviour to be exaggerated and made essentially the same two diagnoses as Mr Stoker. She tentatively diagnosed post-concussional disorder as well. She was unable to offer a prognosis. She thought Mr Tep needed treatment if he were to fully recover.
 Ms Jackson was called on behalf on ATS. She had been shown the surveillance video and testified that what she saw on it was inconsistent with Mr Tep's behaviour in her rooms. She testified that depression and anxiety factors could impact on test performances.
 Dr Byth, a psychiatrist, saw Mr Tep at the request of his solicitors on 7 May 2010. He was provided with reports from (among others) Dr Reid, Dr Todman, Dr Gillett, Mr Stoker and Ms Jackson. He diagnosed adjustment disorder with anxiety and depressed mood. Based on Mr Tep's complaints of headache, dizziness, irritability and his lack of concentration and memory following the head injury, he also suggested an additional diagnosis of post-concussional disorder. He found no evidence of chronic pain disorder. That appears to have been based on his doubts that psychological factors were involved in Mr Tep's complaints of pain and physical impairment. Unlike Dr Ohlrich, he saw no evidence of malingering. He recommended referral to a psychiatrist (for treatment), noting that Mr Tep's anxiety and depression had been following a chronic course without any treatment since he was injured. He expected a partial improvement from specialist counselling and antidepressant medication over the next three years but doubted there would be full remission. He thought it unlikely that Mr Tep would have developed the ongoing features of anxiety and depression but for the injuries sustained in the fall at work. He found no evidence of abnormal illness behaviour or exaggerated pain behaviour.
 Called on behalf of Mr Tep, Dr Byth testified:
“I believe he has a moderately severe adjustment disorder which is causing a moderate impairment of his capacity to work sufficiently and that he could still work, but he will be moderately impaired in his capacity for his usual work because of his ongoing depressive symptoms.”
He said that Mr Tep had told him that he had discussed having treatment with his GP, but it had never eventuated because he could not afford to buy the medication. Under cross-examination he said that heavy drinking (had it occurred) would be likely to cause physical dependence and could have contributed to the depression, as would pre-injury marital disharmony. He thought reports of abnormal illness behaviour by other specialists were probably interpretations of what were really signs of depression (including agitation). He affirmed his view that there had probably been brain damage notwithstanding the absence of any evidence of it on the MRIs. He did not think that the condition would be affected by the conclusion of litigation, successful or otherwise.
 Dr Gunn, a consultant psychiatrist, interviewed Mr Tep for approximately two hours on 10 August 2010 at the request of the solicitors for ATS. She was provided with reports by the doctors named above, including Dr Byth, and a large number of medical records, as well as reports by doctors which were not put in evidence. She reported that in her view there was no evidence of post-concussional syndrome. Testing and memory did not reveal any overt cognitive loss. In her opinion Mr Tep’s symptoms were consistent with adjustment disorder; she noted that he had been "remarkably passive in gaining assistance for his emotional symptoms" and also his high alcohol intake. She thought he would benefit from psychological and psychiatric support and recommended consideration of antidepressant medication and increased activity in his rehabilitation, as well as abstention from alcohol use. She thought his condition neither stable nor stationary.
 In cross-examination on behalf the plaintiff, she adhered to her view that there was no evidence of post-concussional syndrome: Mr Tep was never knocked out, he had no antegrade amnesia, his Glasgow coma scale remained at 15 and he had no post-traumatic amnesia. Unlike Dr Byth she did not think his capacity to work would be impaired by inability to communicate with others in the workforce. She pointed out that Mr Tep played cards with his children and reported good relationships with them and his friends. He was able to follow the sequence during her interview, he followed instructions, took directions and concentrated. Her prognosis was that the adjustment disorder would resolve, there would be no real impairment in the future but that this might be complicated by a pre-existing narcissistic trait. She noted that Mr Tep told her he was not impaired by his emotional symptoms.
 It is not easy to make definite findings about Mr Tep's current psychiatric condition and prognosis having regard to the variations in the evidence. I am not satisfied that he is suffering from any brain injury or post-concussional syndrome; I find the evidence in support of those who expressed the view insufficient. I also reject the view that he suffers from a pain disorder. I find that Mr Tep is suffering an adjustment disorder which at present is severely disabling him and that this was caused by his fall. The evidence is insufficient to find that he is malingering, but I am satisfied that he is not making any significant effort to improve his condition. He probably needs psychiatric assistance to make such an effort. It is to be regretted that he has not followed his GP's advice to get such assistance and WorkCover has not considered it appropriate to offer it. Despite Dr Byth’s opinion to the contrary, I am not satisfied that it has been shown that he will not recover completely from this condition with treatment. I have generally approached the assessment of the medical reports on the basis that Mr Tep's self-reporting is suspect, having regard to my credibility assessment of him.
 Mr Hoey, an occupational therapist, interviewed Mr Tep on 4 August 2011 at the request of his solicitors. He was provided with the reports referred to above as well as a number of other reports and records not in evidence. He reported that on the date of examination Mr Tep was evidencing the following occupational restrictions:
- decreased tolerance for long periods of sitting, standing or walking;
- unfit for heavy or repetitive lifting;
- restrictions with forward bending or twist;
- decreased tolerance for holding the head, neck and shoulders in fixed postures.
I find that these restrictions currently affect Mr Tep as a consequence of his adjustment disorder. I accept Mr Hoey’s evidence that because of them he is currently unfit for any form of labouring or physically demanding work. I doubt there is any other work which he could perform. Because that disorder is not shown to be permanent, I cannot find that these restrictions will be permanent. I conclude that they will diminish over the next three years if Mr Tep undertakes the treatment envisaged by Dr Byth and Dr Gunn.
 I shall indicate the basis upon which damages should be assessed consistently with my findings and ask counsel to agree if possible on the precise quantum of the assessment.
 Damages for pain and suffering and loss of the amenities of life I assess at $20,000. It was common ground that interest should be calculated at 2% per annum on half the amount of the award.
Past economic loss
 Past economic loss should be calculated by the methodology expanded in the statement of claim (which was not challenged). Interest on past loss should take into account WorkCover and Centrelink benefits received by Mr Tep. Corresponding calculation should be made to allow for loss of superannuation contributions. For simplicity it should be allowed in full until 30 September 2012.
Future economic loss
 Future economic loss should be based on the current notional rate of earnings used for the most recent element of past loss. It should be calculated from 1 October 2012. That should allow sufficient time for Mr Tep to have obtained all necessary referrals and to have commenced treatment for his disorder. The base amount should be assumed to continue for six months and then and thereafter be reduced at the end of each six-month period by one sixth of the base amount, with the result that no amount is allowed for future economic loss after 30 September 2015. Future loss of superannuation should be allowed pari passu.
 Allowance should be made for treatment as recommended by Dr Byth and for medication. In the absence of a psychiatric recommendation for the additional participation in a cognitive behaviourally based clinic recommended by Mr Hoey, I would not include any amount for that.
 Special damages are agreed at $3,685.33.
Fox v Wood
 The appropriate calculation should be made on the foregoing basis.
 There will be judgment for the defendant.
 I shall hear the parties on costs.
 Exhibit 7.
 Exhibit 8.
 He plainly meant millimetres.
 He marked the positions of Mr Tep's feet on ex 6 with the letters R and L: see para .
 Transcript 4-26 and 4-30 - 4-35.
 The submission did the mathematics by working up from the platform, but that makes no difference.
 Transcript 3-62 – 3-64.
 Transcript 1-40.
 Exhibit 12.
 Exhibit 15.
 Transcript 4-57 – 4-58.
 ATS has not pleaded failure to obtain treatment as a particular of contributory negligence.
- Published Case Name:
Tep v ATS Australasian Technical Services Pty Ltd
- Shortened Case Name:
Tep v ATS Australasian Technical Services Pty Ltd
 QSC 258
07 Sep 2012
No Litigation History