Stark v Toll North Pty Ltd[2015] QDC 156

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The plaintiff was formerly employed by the defendant as a forklift driver.  On 3 January 2012 he was injured in an accident at work, when a fellow worker reversed a forklift into him, striking him in the back and then, after he fell to the ground, driving the forklift over his ankles.^[1] 
2. [2]
   By this proceeding, the plaintiff claims damages for the injuries he says he suffered on that day.  The defendant admits liability, but puts in issue the nature, extent and consequences of the injuries said to have been suffered as a result of the incident, and consequently the quantum of any damages recoverable by the plaintiff.

The plaintiff’s case

3. [3]
   The plaintiff pleads that, as a result of the incident on 3 January 2012, he suffered the following injuries:^[2]

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

The defendant’s case

6. [6]
   In its defence, the defendant effectively denied any entitlement to general damages, on the basis that:

   1. (a)
      although it admits the plaintiff suffered a musculo-ligamentous injury to his lower back (a soft tissue injury to his lumbar spine)^[8], it denies that is a lumbar spine injury, whether referable to item 92 in schedule 9 of the Regulation or any other item, on the basis of the medical evidence of Dr Reilly (orthopaedic surgeon), Dr McPhee (spinal surgeon) and Dr Ballenden (specialist and consultant occupational physician);^[9]
   2. (b)
      the defendant denies the plaintiff has suffered any mental disorder, whether referrable to item 12 in schedule 9 of the Regulation or any other item, on the basis of the medical evidence of Dr Rice (psychiatrist), Dr Whittingham (forensic psychologist), Dr Low (specialist in occupational medicine) and Dr Ballenden;^[10] and
   3. (c)
      the defendant also denies that the plaintiff has suffered a minor ankle injury, whether referable to item 143 in Schedule 9 of the Regulation or any other item, on the basis of the evidence of Dr Reilly, Dr Saxby (orthopaedic surgeon) and Dr Ballenden.^[11]
7. [7]
   However, the defendant’s position at trial was that:

   1. (a)
      it may be accepted that the plaintiff suffered an injury to his lower back and an injury to his ankle in the incident, and subsequently he suffered an adjustment disorder with some post traumatic symptoms which had fully resolved by June 2012;^[12]
   2. (b)
      the dominant injury is the lower back injury, in respect of which item 93 (minor thoracic or lumbar spine injury) is appropriate; and
   3. (c)
      the plaintiff should be assessed as having an ISV of 4, raised to a 5 for the multiple injuries for which the award of general damages is $6,050.00.^[13]
8. [8]
   The defendant also puts in issue the amounts claimed under the other heads of damage claimed by the plaintiff, including:

   1. (a)
      denying any entitlement to damages for past economic loss, on the basis of the medical evidence particularised in [10(d)(i) to (ix)] of the defence, which includes the evidence of Dr McPhee (that the plaintiff demonstrated “abnormal illness behaviour”, that his alleged incapacity was greater than expected from the clinical and radiological findings and that he had not suffered any impairment), and on the basis that the plaintiff’s failure to return to work is due to his unreasonable refusal to return to work as a forklift driver for the defendant, and, in essence, his choice not to return to any form of full time employment, whether as a forklift driver or otherwise;^[14] and
   2. (b)
      denying any entitlement to claim damages for future economic loss, on the basis that the plaintiff is and has been physically and psychologically able to return to full time work in any capacity for which he is skilled since 5 September 2012, including as a forklift driver or other manual or labour intensive employment.^[15]
9. [9]
   In summary, the competing positions of the plaintiff and the defendant are as follows:

Credibility

10. [10]
    It will be immediately apparent from the table above that the plaintiff and the defendant are diametrically opposed in terms of the quantum of damages recoverable in respect of the plaintiff’s workplace injury.
11. [11]
    That diametric opposition is reflected in the position put to me by each of them about the plaintiff’s credibility:  counsel for the plaintiff submitted I ought to find the plaintiff to be an honest, reliable, and indeed impressive witness;^[37] counsel for the defendant submitted that it would be concluded from the evidence in this case that the plaintiff is fundamentally dishonest.^[38]
12. [12]
    For the reasons which I explain below, I do not accept much of the plaintiff’s evidence.  However, there is a difference between the rejection of a person’s evidence and a finding that he deliberately lied.^[39]  As Brennan, Dawson, Toohey and Gaudron JJ said in Smith v New South Wales Bar Association (1992) 176 CLR 256 at 268:

“… as a matter of logic and common sense, something more than mere rejection of a person's evidence is necessary before there can be a positive finding that he or she deliberately lied in the giving of that evidence.”

13. [13]
    In Fox v Percy (2003) 214 CLR 118 at [30] and [31] Gleeson CJ, Gummow and Kirby JJ reiterated the caution to be exercised in assessing the credibility of witnesses, observing that, over a long period of time:

“… judges have cautioned against the dangers of too readily drawing conclusions about truthfulness and reliability solely or mainly from the appearance of witnesses.  Thus, in 1924 Atkin LJ observed in Societe d’Advances Commerciales (Societe Anonyme Egyptienne) v Merchants’ Marine Insurance Co (The ‘Palitana’)^[40]:

‘… I think that an ounce of intrinsic merit or demerit in the evidence, that is to say, the value of the comparison of evidence with known facts, is worth pounds of demeanour.’

Further, in recent years, judges have become more aware of scientific research that has cast doubt on the ability of judges (or anyone else) to tell truth from falsehood accurately on the basis of such appearances.  Considerations such as these have encouraged judges, both at trial and on appeal, to limit their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events.  This does not eliminate the established principles about witness credibility; but it tends to reduce the occasions where those principles are seen as critical.”^[41]

14. [14]
    This approach is reflected in the observation by Keane JA (as his Honour then was) in Camden v McKenzie [2008] 1 Qd R 39 at [34] that:

“Usually, the rational resolution of an issue involving the credibility of witnesses will require reference to, and analysis of, any evidence independent of the parties which is apt to cast light on the probabilities of the situation.”^[42]

15. [15]
    Also reflecting the significance of contemporary documents, is the following comment made by Lord Pearce in Onassis and Calegopoulos v Vergottis [1968] 2 Lloyd’s Rep 403 at 431 (in the context of a helpful discussion regarding credibility and reliability)^[43] that:

“It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active.  For that reason a witness, however honest, rarely persuades a Judge that his present recollection is preferable to that which was taken down in writing immediately after the accident occurred.  Therefore, contemporary documents are always of the utmost importance.” 

16. [16]
    It seems to me that the doubt about the ability of judges to determine whether someone is telling the truth based on how a witness appears in court is also reflected in Associate Professor (Dr) McPhee’s candid comment (to which further reference will be made below) that he could never say, just by talking to a patient, that they are consciously being dishonest about symptoms they describe, as opposed to their presentation of complaints being at a subconscious level.^[44]   But as against that, Dr McPhee does express an opinion about the inconsistency between the plaintiff’s subjective complaints and the objective clinical and radiological findings.
17. [17]
    What I have found, upon a close and careful analysis of the whole of the evidence, is that in many respects I cannot accept what the plaintiff says, because of the inconsistencies between his evidence, and what appears in contemporaneous records made by the large number of medical practitioners he has seen over the last almost 3 and a half years (and indeed inconsistencies as between those medical practitioners, in terms of what they have recorded the plaintiff as telling them).  The plaintiff’s evidence simply does not withstand that close scrutiny.
18. [18]
    In carrying out that analysis, I have divided the medical evidence into the following sections:

    1. (a)
       the evidence relating to the rehabilitation period, up to September 2012 (when the plaintiff’s employment was terminated);
    2. (b)
       the evidence after the rehabilitation period, in terms of expert opinion gathered in the context of this litigation;
    3. (c)
       the evidence beginning with the plaintiff’s attendance on a new GP, Dr Salinas, in November 2013, and the various referrals to specialists made by Dr Salinas;
    4. (d)
       the surveillance footage, and comments in relation to that; and
    5. (e)
       seen in light of the foregoing, the evidence from the occupational therapists, from March 2013 and June 2014.
19. [19]
    Before turning to my analysis of the evidence, I note the following general point.  A number of matters from the medical reports were put to the plaintiff during his cross-examination, which were inconsistent with his evidence at trial.   In the face of those inconsistencies, he frequently denied having said things which are recorded in doctors’ notes or reports.   In general, I have taken the view that what the doctors have recorded, in their clinical notes or reports, is based on what the plaintiff has told them at the time.^[45]  They are contemporaneous notes, made by professionals who have no interest in the outcome of this proceeding, and in my view are more reliable than what the plaintiff says he remembers now.
20. [20]
    I am reinforced in that view by the fact that it was apparent from the plaintiff’s evidence that he did not have a good recollection of all of his attendances on the various medical practitioners.^[46]  I do not criticise him for that, as it is perfectly understandable, given both the time frame involved, and the number of people he has seen.  But it does reinforce the greater reliability of contemporaneous records made by the relevant practitioners of those attendances.

Circumstances pre-accident

21. [21]
    The plaintiff was born on 3 April 1991.  He was therefore aged 20 at the time of the accident, and is 24 now.  He left school in 2006, at the end of grade 9.  Following that, he worked in a few different places, before commencing work for the defendant in February 2011, as a forklift driver, at the defendant’s NQX warehouse at Eagle Farm.^[47]
22. [22]
    When working for the defendant, the plaintiff said that he worked the afternoon shift, from 4pm to 12pm.  About 85-90% of his work was on the forklift.  He said there would be anywhere from 40 to 50 forklifts operating, per shift, on an average day.^[48]
23. [23]
    He is now married, to Sandy Lee Stark.  They were married in January 2013, although had been together since about 2010.  The plaintiff said that prior to the accident, they enjoyed rock climbing, owned 3 motorbikes which they would “try and get out on” at least every fortnight, he owned two classic cars they were restoring together, and went to the movies.  He said their sex life was “very good”.^[49]
24. [24]
    The plaintiff was cross-examined about his pre-accident interests, by reference, among other things, to his application for employment with the defendant, which listed playing soccer, going fishing and “working hard” as his “major interests”,^[50] but made no reference to rock climbing, surfing, running or restoring cars.^[51]  His attention was also drawn to what he told the psychiatrist, Dr Mathew (namely that he was no longer able to play rugby, jet ski and ride his trail bike), things not mentioned on his application form.^[52]  The plaintiff’s wife also gave evidence about the recreational activities they had previously enjoyed, referring to rock climbing, surfing, hiking, motor bike riding and “everything active really”.^[53]  I do not take much from these apparent inconsistencies.  I accept that the plaintiff and his wife were young, active people with a variety of interests, and that in various contexts (for example, an application for employment), a person might not necessarily refer to all their various interests. 
25. [25]
    Likewise, attention was drawn by the defendant to the plaintiff having lied on a number of occasions, including on his application for employment with the defendant, about having completed year 10.^[54]  Although dishonest, in the context of the issues I have to determine, I do not place a great deal of emphasis on this.  It is perhaps understandable that in today’s labour market, someone in the plaintiff’s position, having left school at year 9, would be tempted to make their education level sound better.   However, in the context of the plaintiff’s claim for a very large sum of money for past and future economic loss, it is noteworthy that he has not taken any steps to complete year 10, or year 12 for that matter, and he acknowledged there is no impediment to him doing this, “apart from the financial side of things”.^[55]
26. [26]
    The plaintiff and his now wife had plans to get married in 2012, and wanted to have a “big wedding with all our friends and family and we planned to go to Thailand for our honeymoon”.

The accident:  3 January 2012

27. [27]
    The plaintiff said he does not recall a great deal about the incident.  In his evidence in chief he said:

“I was at work.  I’d just started. I went to help a co-worker unload the trailer that he was doing.  We’d pulled the curtains and we were removing the straps.  I was pulling down a strap and the forklift was coming from behind me and reversed into me.  The next thing I recall after that is waking up on the ground, sort of coming to and there was a lot of people around me. … I had sharp pain in my back and pain through both of my ankles.”^[56]

28. [28]
    There are a number of variations of the incident recorded by the numerous doctors and other medical professionals the plaintiff has seen since the accident, on the basis of what the plaintiff told them.  Notable variations are: what the circumstances of the incident were;^[57] whether he hit his head^[58] and whether he lost consciousness;^[59] what happened to his left ankle, in particular whether it was fractured.^[60]
29. [29]
    In cross-examination when these various inconsistencies were put to him the plaintiff acknowledged that he does not recall the incident, and that in what he has told various people since then he is not sure whether he is remembering the moment before he was hit, or whether it is something he has created based on what other people have told him.^[61]
30. [30]
    No witness to the incident was called.  This is no doubt because the pleaded circumstances were largely admitted by the defendant (with the clarification that the forklift drove over the plaintiff’s ankles, rather than his legs as originally pleaded).  Other than as part of the broader attack on the plaintiff’s credit, the mechanism or circumstances of the incident are not significant in terms of the issues to be decided.  In so far as the attack on credit is concerned, it is not surprising to me that, given the number of medical practitioners the plaintiff has seen in the course of this litigation, there is some variation in what he has told them.  Perhaps it could be said that, to the extent that he did not simply tell them he does not recall, and chose to embellish the circumstances in various ways, that reflects a preparedness to depart from the truth for his own gain.  But there are more significant and concrete reasons for making the findings that I do in this matter, and I do not base my conclusions on these digressions.

Circumstances after the accident

31. [31]
    Following the accident, the plaintiff was taken by ambulance to the Royal Brisbane and Womens Hospital.  The ambulance records note that the plaintiff was complaining of ankle pain, both left and right, and lower back and buttock pain.^[62]
32. [32]
    X-rays were taken at the hospital on 3 January 2012, which showed no fractures (of the pelvis, lumbar spine or left ankle).^[63]  The hospital records show he was diagnosed with a left ankle sprain (for which he was given a compression bandage, crutches and pain relief) and lumbar pain (for which he was given pain relief).  He was discharged that same day^[64] and his now wife took him home.
33. [33]
    The plaintiff said that over the next week, he was suffering from severe pain through his lower back and left ankle, had difficulties moving around and showering etc.  His now wife assisted him.  He was having difficulty sleeping, because of the pain and because he couldn’t stop his mind thinking about what had happened.^[65]
34. [34]
    The plaintiff gave evidence of having nightmares, saying “[t]hey weren’t about any really thing in specific other than me injuring myself – just getting hurt” and said they continued frequently (3 or 4 times a week) for six to eight months.^[66]  He referred to working with a psychiatrist (which I infer is Dr Rice^[67]), using techniques to reduce the dreams. 
35. [35]
    By about 3 weeks after the accident, he said there had been “significant improvement” in his ankles, but not in his lower back.^[68]
36. [36]
    It is apparent the plaintiff was provided with considerable assistance by the defendant in terms of his rehabilitation and returning to work.  The large body of medical evidence put in evidence at the trial was in part contributed to by the significant efforts at rehabilitation undertaken by the defendant.  
37. [37]
    The plaintiff returned to work at the beginning of April 2012, initially on “light duties” which the plaintiff described as “in the office with the administration employees, sorting consignment notes into their relevant pigeon holes”.  He started just with 2 hours, and then increased each week.  When he first returned to work, he still had some pain in his left ankle, as well as pain in his back.^[69]
38. [38]
    He had returned to doing full hours by about June/July 2012.  By that time, he said he had made his way back onto the warehouse floor.  He was still doing consignment notes in the office as well as working on the warehouse floor, scanning and placing bar codes on palettes.  He was not yet driving a forklift.^[70]
39. [39]
    The plaintiff gave evidence about his attempts to drive a forklift post the accident.  Of his first attempt (he could not remember when this was) he said that he hopped on to the forklift, turned it on and drove it away, but “[a]fter two to three minutes, I started to experience very sharp pain in my lower back.  I didn’t last any more than five minutes on the actual forklift driving it”.  He then told his manager, Mark Davies that he was experiencing severe pain in his back and needed to go home so that he could take his pain medication.^[71]
40. [40]
    He referred to feeling pressured by work to get back on the forklift, referring to Giacinta^[72], the rehabilitations officer, telling him that reports had come back from doctors saying he is all right to drive a forklift and that they (presumably the defendant) wanted him to do so.^[73]
41. [41]
    Following that he seems to have had a couple of days off work (he referred to seeing Dr Sidhom in this context).^[74] 
42. [42]
    About 2 to 3 weeks later, the plaintiff had a second attempt.  He said he only vaguely recalled it.   He referred to “driving around the warehouse” and “just from the jerking motion [which he said was a bouncing motion] that just increased and I got a sharp pain in my back.” Again, he went home.^[75]
43. [43]
    He had a third attempt, but could not remember when that was.  He said the same thing happened, he experienced a sharp pain through his lower back, and he lasted no more than five minutes.^[76]
44. [44]
    The plaintiff’s employment with the defendant was terminated in September 2012, in circumstances where he refused to agree to a return to work program which involved him starting at 4 hours per day on the forklift, and gradually increasing back up to 7 hours per day.  I will return to the evidence concerning this below, but turn now to the medical evidence relating to the rehabilitation period up to September 2012.

Medical evidence – rehabilitation period, up to September 2012

45. [45]
    At the time of the accident, the plaintiff was seeing Dr Farid Sidhom as his GP.   Dr Sidhom saw the plaintiff a number of times in January 2012.  Dr Sidhom’s notes of the plaintiff’s attendances on 6, 10, 17 and 20 January 2012 do not make express reference to back pain, and it was put to the plaintiff in cross-examination that he did not complain to Dr Sidhom of back pain on those occasions.  The plaintiff insisted that he did. 
46. [46]
    On 25 January, Dr Sidhom recorded “still c/o sore lower back couldn’t go to work today”,^[77] which seems to suggest a continuing complaint.  Also, in another part of these notes, referring to “investigation requests”, there is a reference to a request on 25 January 2012 for an x-ray of the lumbo-sacral spine, with the note “sore lower back 3/52”.  On that basis, I do not draw any adverse inference from the fact that there is no earlier mention in the notes of back pain.  It seems uncontroversial that at this early stage the plaintiff had a sore back.
47. [47]
    Dr Sidhom referred the plaintiff to Dr Reilly, an orthopaedic surgeon.  A number of reports from Dr Reilly were tendered, as well as her clinical notes.^[78]
48. [48]
    Dr Reilly first saw the plaintiff on 8 February 2012.   In her letter of that date, to Dr Sidhom, she said (after referring to the circumstances of the injury):

“He was taken by QAS to Royal Brisbane Hospital and at that stage his ankle were investigated more so than his low back.  His ankles are now much better, but he has had unfortunately constant back pain which feels like an increase in pressure in his low back.  It is worse if his [sic] lies or sits for long periods and he is not sleeping well.  He is not taking any pain killers currently although he was taking Endone, but he has run out.  He has not pins or needles or weakness in his lower limb or radiculopathy.^[79]  His bowel and bladder function are normal.”^[80]

49. [49]
    She sent him for an MRI “just to exclude any subtle fractures”.  The MRI was normal.
50. [50]
    In relation to the MRI being normal acutely post injury, Dr Reilly confirmed that if the impact [of the injury] was significant, “you could see hematoma in the paraspinal muscles.  Even within three months of injury, bone bruising would be present and occasionally you can see soft tissue oedema.  So just even swelling in the soft tissues are able to be seen on MRI even in a couple of months down the track which I still call it acute”.^[81]  There was none of that on the plaintiff’s MRI, from which it can be inferred the impact was not significant.
51. [51]
    Dr Reilly subsequently wrote a report, addressed to Ms Karen Jeanes of the defendant, dated 15 February 2012.^[82]   In this report, Dr Reilly noted (second paragraph) that “[h]is ankles are much better and he does not report any ongoing problems with them, however, he does have constant low back pain”.^[83]  Dr Reilly expressed the opinion that the plaintiff has a soft tissue injury to his low back, and being soft tissue alone, should recovery completely.  She also said she would expect the plaintiff “will dramatically improve within the next four to eight weeks”, and therefore be able to return back to normal duties in that time period.  In her oral evidence, she confirmed that the plaintiff did not complain to her of any pain or instability in his left ankle.^[84]
52. [52]
    In the period from 27 February to 1 March 2012 the plaintiff participated in a “specialist pain management program” conducted by Cor Health and Rehabilitation (Cor).  Having completed that program, the plaintiff continued to be overseen by Mr Singleton and Ms McCook, the coordinators of the rehabilitation program run by Cor, until about August 2012.
53. [53]
    Reports from Cor dated 6 March 2012 and 29 August 2012 are in evidence.^[85]  The reports appear largely to have been written by Mr Singleton (a specialist pain management physiotherapist), but also include the observations of Ms McCook (a physiotherapist and exercise physiologist) on her physical evaluation of the plaintiff.  Ms McCook also gave evidence of her observations as she assisted with the plaintiff’s rehabilitation and return to work, in the period up to August 2012, by reference to her email correspondence with the defendant in that period.^[86]
54. [54]
    In the first report dated 6 March 2012, Mr Singleton noted, among other things, that:

    1. (a)
       the plaintiff expressed frustration with his progress and that he “would like to actively undertake strategies to ensure functional recovery and RTW^[87] ASAP” (p 1);
    2. (b)
       the plaintiff also expressed concern “he may not regain the function necessary to actively regain activities of daily living” (p 1);
    3. (c)
       the plaintiff reported “he can handle sitting / driving for up to 40 minutes.  He can walk for 30 minutes and does this regularly at home on the treadmill a few times per day for his fitness and back rehabilitation” (p 2) (the plaintiff denied that he was doing this a few times a day);^[88]
    4. (d)
       the results of the DASS test (the self-reporting depression, anxiety and stress test) administered at the commencement of the pain management program, revealed results of 16 for depression (moderate), 10 for anxiety (mild) and 22 for stress (moderate) (pp 2-3).^[89]
55. [55]
    The plaintiff saw Dr Reilly again on 14 March 2012, on which date Dr Reilly reported back to Dr Sidhom:

“I have seen [the plaintiff] today, he has had some improvement but just marginal.  He is now only taking prn^[90] analgesia but he still has pain and he rates it as about a six out of ten.  It is all in his low back region.  He did core strengthening course which he thinks has helped him and he is also starting hydrotherapy.  He is keen to start some light duties which apparently are starting in two weeks time…”^[91]

56. [56]
    On 29 March 2012 Dr Reilly wrote to the defendant again, advising that

“Nicholas’ limitations are any heavy lifting, no squatting or bending.  I don’t want him operating any machinery or doing any significant pushing or pulling with weights.  On my WorkCover certificate, I wrote desk duties should be all that’s considered at this point.”^[92]

57. [57]
    Around this time, on 22 March 2012, the plaintiff was referred by the defendant to Associate Professor (Dr) Bruce McPhee, spinal surgeon.  Dr McPhee produced a report dated 28 March 2012.^[93]  Under the heading “current status” (p 2), Dr McPhee recorded:

“There is a complaint of constant low back pain likened to pressure.  He also experiences transient sharp pinching pain when he lies down.  He rates his pain generally as 6 on a 10 point numerical scale.  There are no lower limb symptoms.

Pain is aggravated by prolonged sitting, standing and walking such that he constantly has to change position.  He says that he has a sitting tolerance of 45-60 minutes and a walking tolerance of 30 minutes.  Bending is restricted and painful.  He claims that his pain is not relieved when lying down and hence he has difficulty getting to sleep.  Bladder function is unaffected.  He has no lower limb symptoms. 

Currently he is taking Mobic for pain.  Physiotherapy and hydrotherapy are ongoing.  He is unmarried and single and lives with his girlfriend but does nothing around the house.  Personal care is independent.  He did not complete a high school education but has a ticket to operate a forklift.  He has no other trade or tertiary qualifications.”^[94]

58. [58]
    Of his own examination of the plaintiff, Dr McPhee recorded:

“The claimant is of average height and thin build.  His posture and gait were normal.  Examination of his back shows no visible injury.  He could walk on his heels and toes, squat.  Pain was reproduced on axial compression and pseudorotation.

The range of lumbar spine movements was generally reduced.  He flexed 40º to reach his knees.  When seated with legs extended he could reach beyond mid-shin.

Straight leg raising was to 70º bilaterally without nerve root tension.  Deep tendon reflexes were normal.  He demonstrated global cogwheel weakness throughout the left leg but the power was normal.  Sensation in both lower limbs was normal.  Tenderness was noted over the lower lumbar spine.

During the examination a number of abnormal clinical findings were noted consistent with abnormal illness behaviour.”^[95]

59. [59]
    Dr McPhee noted that an MRI scan of the lumbar spine done on 14 February 2012 was normal.
60. [60]
    Dr McPhee expressed the following opinion:

“Diagnosis

There is material evidence that [the plaintiff] suffered a work place injury when struck in the back for (sic) a forklift on the 3^rd January 2012…

Nonetheless although he relates his symptoms to the lumbar spine, the MRI scans are normal, there being not even evidence of degeneration or injury.  The clinical examination is essentially normal.  The extent of his incapacity is greater than would be anticipated given the clinical and radiological findings.

There is an ongoing complaint of low back pain with no radicular signs or symptoms.  There is voluntary restriction of lumbar spine movements with some abnormal clinical signs.

…

Treatment

On the basis of the clinical presentation surgery is not indicated.  Physical therapies are unlikely to result in any substantial or sustained improvement and may serve only to reinforce invalidity.  Ongoing treatment depends on self-management of pain with appropriate analgesia or any other modality found to be helpful.  A regular exercise program to improve lumbar spine mobility, trunk strength and aerobic fitness is advised.  To this end referral to a rehabilitation program for work hardening and cognitive behavioural therapy may be of some benefit.

Functional Incapacity

In the absence of any injury or underlying cause for back pain and an absence of any significant impairment of the lumbar spine, the extent of the claimant’s incapacity is greater than might be anticipated.  Nonetheless he continues to complain of pain which functionally interferes with his mobility and capacity to undertake manual tasks.  There is nothing on examination at the present time which would preclude [the plaintiff] from undertaking semi-sedentary work which includes light manual tasks.  In this regard a suitable duties program should once again be tried.  If he is being sent for work hardening rehabilitation then the commencement of such a program should be geared to follow the program.

Consistency of Presentation

The history of the incident is consistent with an injury.  Radiological studies show no significant structural injury has occurred and there is no underlying cause to explain his continuing symptoms.  Clinically there were a number of findings which were not consistent with organic low back disease indicating abnormal illness behaviour.

Questionnaires completed at the time of examination show a moderate level of stress which is likely to dictate the level of activities he is prepared to undertake.  Yellow Flag questionnaires identify fear avoidance beliefs and psychological issues as potential risk factors in the development of a chronic pain syndrome.  For this reason cognitive behavioural therapy is important in rehabilitation. …”^[96]

61. [61]
    In her email dated 30 March 2012, Ms McCook provided recommendations for a return to work program for the plaintiff, starting with 3 hours in the first week, and working up to 6 hours by the fourth week.  On 4 April 2012 Ms McCook wrote a further email, noting that the plaintiff “is progressing slowly with his rehabilitation now…”, but also that “he fortunately is very keen to return to work”.  In her oral evidence, she confirmed that at this stage, she was starting to notice that the plaintiff’s rehabilitation was not progressing at a pace that would be expected, having regard to the nature of the injury (primarily soft tissue, no structural damage).^[97]
62. [62]
    Dr Reilly saw the plaintiff again on 26 April 2012, and reported to Dr Sidhom that:

“I have seen [the plaintiff] today who really is much the same since his last visit.  He is managing 4 hours a day 3 days a week and he thinks he is able to upgrade to 5 hours a day.  I really don’t have much to offer him except a bit of reassurance.  I have kept him on light duties for another two months as I think this is realistic and he should continue all of his physio and gym program.  I haven’t arranged to see him again as I really don’t have anything to offer and I am sure you can manage his upgrade WorkCover certificate.”^[98]

63. [63]
    Dr Reilly said that, at this stage, she had exhausted any treatment that she could provide as an orthopaedic surgeon, saying “[h]e had a normal MRI and, generally, most people who have an injury that – nothing significant shows up on their MRI – go on to improve significantly so they can return to their job.  So I assumed at that point that that would be [the plaintiff] and he would improve so that he would get back to work”.^[99]
64. [64]
    The plaintiff confirmed that the “light duties” referred to here was the work that he described in his evidence, putting consignment notes into pigeon holes etc.  He had not been out on to the factory floor yet.^[100]
65. [65]
    Ms McCook’s email of 9 May 2012 refers to the plaintiff continuing “to progress slowly but steadily”, and at the gym his strength levels remaining “quite low, 1-2 plates”.   Her email of 14 June 2012 records that the plaintiff had told her he had some relief following the injections (said to be the facet joint injections^[101]) and that his “pain level was decreasing from a 6/10 to a 4/10 on a daily basis”.
66. [66]
    As part of the rehabilitation program organised by the defendant, the plaintiff saw Dr Graham Rice, a psychiatrist, who also specialises in pain medicine, on about 6 occasions.  Dr Rice provided a report to the defendant dated 7 August 2012.^[102]  In this report, referring to an attendance by the plaintiff on 12 June 2012, Dr Rice recorded:

“At that time he was working 7 hours per day 5 days a week, including ‘on the (warehouse) floor as much as I can’.  He said he was still not physically fit enough to try forklift driving.

He said that mentally he was feeling better, and had no more troublesome dreams, and minimal anxiety when he is on the floor.”

67. [67]
    The plaintiff did not accept that he would have said he had no more troublesome dreams.^[103]
68. [68]
    Dr Rice also prepared a further report, dated 19 January 2015.^[104]  This report largely contains comments by Dr Rice on the reports of other doctors, with Dr Rice noting that he had not seen the plaintiff again after June 2012.^[105]  However, it also includes notes based on review of Dr Rice’s clinical file, from his original appointments with the plaintiff in the first half of 2012.  The notes for June 2012 are consistent with what appears in Dr Rice’s August 2012 report, set out above.  On that basis, and on the basis of Dr Rice’s oral evidence,^[106] I accept that the plaintiff told Dr Rice in June 2012 that he had no more troublesome dreams.
69. [69]
    Ms McCook’s email of 26 June 2012 refers to her review of the plaintiff on 20 June.  In this email, she records that:

“He seems very apprehensive to return to normal forklift duties, but with further questioning for clarity of why, it was determined to be little to do with the forklift, but more to the concern of effect of repetitive lifting and carrying / loading and the potential for reinjury. He is also not sure how his back will be with the jostling on the forklift.”

70. [70]
    In this email Ms McCook makes reference to a return to forklift activities plan being “developed with Giacinta, with a goal of increasing his exposure, but doing so in a controlled manner to start with, progressively increasing the time and nature of tasks as the weeks progress”.  She also notes that “[h]is long term goals are unclear as he doubts his ability to get back to work – hence reassurance and progressive increase is important to facilitate his recovery”.
71. [71]
    Dr McPhee saw the plaintiff again on 28 June 2012, and provided a report to the defendant dated 5 July 2012.^[107]  In this report, Dr McPhee recorded that the plaintiff “states that there has been improvement although less than 50% compared with the lower back at its worse.  Improvement is ongoing”.
72. [72]
    In terms of “current status”, Dr McPhee recorded:

“[The plaintiff] says he has good days and bad days.  The low back pain is constant and rated at 5 on a 10 point numerical scale. The pain is confined to the back with no lower limb symptoms relating to his back.

Pain is mechanical in nature being worse with bending, twisting, prolonged sitting and prolonged standing.  He says he has a sitting tolerance of about an hour while bending is limited.  He gets some relief when lying down.  Bladder function is unaffected.

[The plaintiff] takes Endone 2 or 3 days a week.  He says he attends hydrotherapy in a gym program at his own cognisance nearly everyday.  Personal care is independent.  Activities of daily living are not restricted but slower than normal.”^[108]

73. [73]
    Of his own examination of the plaintiff on this occasion, Dr McPhee recorded:

“The claimant had a normal posture and gait.  He could walk on his heels and toes.  Lumbar spine movements were mildly reduced in all planes.  He could flex 50º to just reach his knees.  When seated with legs extended he could reach beyond mid-shin.  Restriction of flexion is voluntary.  Straight leg raising was to 70º bilaterally without neural tension.  Deep tendon reflexes, power and sensation in both lower limbs were normal.  Tenderness was noted over the lumbosacral junction.”

74. [74]
    Dr McPhee diagnosed the plaintiff as having suffered a soft tissue injury to his lower back.  He noted the continuing complaint of low back pain without radicular signs and symptoms, and voluntary restriction of lumbar spine movements.
75. [75]
    In terms of prognosis Dr McPhee said that:

“It is now six months since the injury and more than likely he will have continuing symptoms.  This is of no concern.  He has suffered no significant structural injury to the back.  His condition and (sic, is) stable and stationary.” 

76. [76]
    No specific treatment was said to be required.
77. [77]
    In terms of “functional incapacity”, Dr McPhee said:

“This gentleman’s functional recovery has been inordinately slow due to introspection on behalf of the claimant and an overcautious return to work program.  There is no reason why he should not have been back on the forklifts much sooner than now.  He is back doing full-time work.  He should be put back on the forklifts with the aim of returning him to full duties within the month.  His condition has reached maximum medical improvement.”^[109]

78. [78]
    Ms McCook’s email of 11 July 2012 refers to her having spoken to Dr Rice on that day, and Dr Rice maintaining that “as long as [the plaintiff] is allowed to draw out the process on his own terms he is likely to do so”.  In this email, she makes reference to “all avenues including the medical information that have been forwarded to TOLL all state the same – There is no apparent reason for him to not be able to return to those duties in a gradual process as indicated and discussed with him.  His lack of willingness to trial this workplace activity is more of a decision rather than an inability to do so”.    In her oral evidence, she explained that at this time:

“So we were progressing … through his return to work process and attempting to get him to upgrade.  The initial response was the concern was the sitting and the lifting and the loading and those elements, and so we were targeting that with his physical recovery.  And then it came through a little bit more clearly that he had indicated there was concerns and avoidance with getting back onto the forklift for psychological reasons.  So Dr Rice had assessed him a couple of times and Toll had come back to me again and said, look, you know, we are at between a rock and a hard place.  We can’t get him to progress, and asked me to talk to Dr Rice to see him again.  And Dr Rice’s response was basically along the lines of what I reported back to Toll in that email that we’d covered things from a physical aspect and after six months of rehabilitation I’d expect him to be tolerating a lot more.  We sort of tackled that as well as we could.  So the indication was there seems to be something other than physical that’s driving his inability to return.”^[110]

79. [79]
    That seems to have prompted the defendant to refer the plaintiff to a psychologist for assessment (I infer this was Mr Whittingham, referred to below).  In her email of 11 July, no doubt reflecting a view Ms McCook had by then formed about the accuracy of the plaintiff’s self reporting, Ms McCook says, “[p]lease ensure the psychologist [the plaintiff] has been referred to receives supportive documentation as provided by reports so he has a clear picture of his presentation beyond his discussion with [the plaintiff].  Similarly, double check the GP has also received all the supporting documentation available so he also has a clear picture of the information beyond the conversation in the consultation”.^[111]
80. [80]
    On 24 July 2012 the plaintiff saw Dr Ian Low, who is described as a specialist in occupational medicine, as part of the defendant’s rehabilitation efforts.  His report dated 30 July 2012 is in evidence^[112] but he was not called to give evidence at the trial.  Dr Low records the plaintiff telling him “that he experiences shooting pains down the backs of his legs to his knees when the pain in his lower back is more severe”.   Dr Low’s “summary and conclusions” includes the following:

“… [The plaintiff] said … that he has continued to experience constant low back pain increased by physical activity.  He said that the more the tightness in the musculature of his lower back, the more he experiences the pain.

[The plaintiff] told me that he feels he is lucky to be alive and tries to look at what occurred in a positive way (ie he is alive) as, otherwise, he gets depressed.  He said that he feels anxious and tense while walking in the warehouse, particularly so when forklifts are reversing near him.  He has become frustrated with how he perceives he has been treated since the accident.  He said that he has been told to return to forklift driving and put up with the pain.  He also feels that people do not believe him.

The continued reporting of low back pain is due to the tightness in his spinal musculature consequent upon the continuing disturbance in his emotional functioning.  He can be viewed as suffering from an Adjustment Disorder with associated tightness in his spinal musculature.  He needs to receive treatment for his condition.  Physical therapies and cognitive behavioural therapy orientated to modifying his pain experience would not be expected to be effective in settling his low back pain.

[The plaintiff] needs to be provided with strategies and techniques so that he does not develop (as much) tightness in his spinal musculature when exposed to forklifts, particularly when forklifts are reversing close to him.  I would suggest that those strategies and techniques are implemented in the workplace in conjunction with a psychologist.  He would require up to six sessions with the psychologist.

As [the plaintiff] is able to progressively decrease the tightness in his spinal musculature consequent upon his emotional functioning, he will be able to perform more physical activities, which increase the muscle tightness, without reporting pain.  I would suggest that, once he is provided with the appropriate strategies and techniques to control his anxiety, he progressively increase the amount of time he drives a forklift until he is driving full time.  Until he has successfully implemented the psychological strategies and techniques, he should perform physical exercises to reduce muscle tightness regularly throughout the day.”^[113]

81. [81]
    There can be seen to be some escalation in the description of the incident in this report, in terms of the plaintiff saying he feels “lucky to be alive”.  Likewise, the description of “shooting pains down the backs of his legs to his knees”, seems to suggest an escalation and is a new complaint, which was not reported to Dr McPhee, who the plaintiff had seen just one month earlier, on 28 June.
82. [82]
    In his August 2012 report,^[114] Dr Rice referred both to Dr McPhee’s report, and also to Dr Low’s report (noting the contrast between what was seemingly reported to Dr Low, and what was reported to Dr Rice, the latter that “he [the plaintiff] said he was managing well”).   Dr Rice said:

“With this discrepancy between the reports to various practitioners, he needs to follow Dr McPhee’s advice and return to activity on a graded basis (including increasing his tolerances on the forklifts) with the knowledge that ‘hurt does not equal harm’.”

83. [83]
    Dr Rice confirmed that in his opinion the plaintiff’s “Adjustment Disorder with Anxiety” had resolved (when he saw the plaintiff in June 2012) and said:

“His ongoing pain behaviours, noted by Dr McPhee to be exaggerated, probably relate to factors undisclosed to me.  They may include the industrial issues outlined by Dr Low in that he does not always feel believed at work…

His current restrictions are largely self imposed, and need to be reduced by following the appropriate physiotherapy advice (as had been provided by Donna McCook), and he must apply these in the workplace with gradual increase in his tolerance driving forklifts if he is going to achieve his goal of returning to that work.”

84. [84]
    In so far as Dr Low was recommending onsite psychological therapy, Dr Rice also expressed the view that “[i]nvolving other practitioners risks reinforcing him in the sick role, his pain behaviour and any belief he has of ongoing significant impairment.  Because of the risks of reinforcing his pain behaviour, the necessity for further on-site therapy help needs to be carefully considered”.
85. [85]
    As seemingly foreshadowed in Ms McCook’s email of 11 July 2012, the defendant did arrange for the plaintiff to see Mr Whittingham, a forensic psychologist, as part of the rehabilitation process.  Mr Whittingham interviewed the plaintiff at the defendant’s premises on 17 July 2012, over 3½ hours.  Mr Whittingham prepared a report dated 21 August 2012.^[115]  Among other matters addressed in Mr Whittingham’s report, he recorded that:

“[The plaintiff] stated he has tried getting back on the forklift, and that its not the little bouncing around that increases pain, but no suspension and hard rubber tyres jarring his back he considered does hurt his back.  Mr Stark reported he had attempted to return to forklift driving 4 times and this was 2 months ago and each time he ‘didn’t last 10 minutes, as pain started when took off and started driving’.  Mr Stark reported minimal anxiety associated with approaching and being around forklifts.”^[116]

86. [86]
    In relation to the first sentence, the plaintiff denied he said this (that is, that it was not the bouncing around that increases pain).^[117]  In fairness to the plaintiff, that first sentence is somewhat unclear in terms of what is meant.
87. [87]
    In the course of his lengthy interview with the plaintiff, Mr Whittingham conducted an assessment which involved the plaintiff driving a forklift under his supervision.  In his report, Mr Whittingham recorded that:

“Observation at site revealed no overt signs of anxiety working on the site floor, traversing the floor space, getting onto and starting the forklift and driving the forklift under evaluation.  Pre and post subjective units of distress revealed no anxiety related distress.  Preoccupation with back jarring and onset of pain was described.”^[118]

88. [88]
    Mr Whittingham administered the DASS test, and the results were within the normal range.^[119]
89. [89]
    In terms of his clinical diagnoses, Mr Whittingham expressed the following opinion (at pp 9-10):

“[The plaintiff’s] symptomatology appeared consistent diagnostically with criteria for an Adjustment Disorder with Mixed Anxiety and Depressed Mood (DSM IVTR: 309.28: Acute); full clinical threshold likely reached February 2012 and persistence to July 2012.  The identifiable stressor(s) to this symptomatology likely being his lumbar injury and its impact functionally on his activity.  Mr Stark’s anxiety appeared specific to the forklift accident, and his condition appears to have fully resolved, with no ongoing negative mood symptomatology evident on review.  Mr Stark’s current clinical presentation appeared consistent with a Pain Disorder Associated with Both Psychological Factors and a General Medical Condition (DSM IV TR: 307.89-724.2 = Chronic) given:  (1) the resolution of his lumbar strain; (2) pain in his lumbar region has been the main focus of his clinical presentation and has warranted clinical attention; (3) this pain is causing impairment in his occupational functioning; and (4) psychological factors appeared to have been playing a role with his pain (ie fear of re-injury, anxiety towards forklifts, fear of not recovering, feeling hopeless and helpless with respect to pain); (5) his adjustment condition pervading his recovery process.”^[120]

90. [90]
    I note that it was not pleaded that the plaintiff suffered from a pain disorder; nor was this pressed in any way at the trial.^[121]
91. [91]
    On 22 August 2012, Mr Singleton sent an email to Karen Jeanes of the defendant, copied to Ms McCook, which appears to respond to a recommendation made by Mr Whittingham for the plaintiff to attend a pain management clinic.  Mr Singleton notes that the plaintiff has already done this with Cor and there is no need for him to do it again.  In her email of 22 August, Ms McCook responded, expressing her agreement with Mr Singleton’s comments, and further making the comment that the plaintiff has “consistent inconsistencies with his reports” (the fear of forklifts v the pain on driving given as an example).^[122]
92. [92]
    For a time, between June and August 2012, the plaintiff saw another GP, a Dr Emerson Arocena, from Medibank Health Solutions Pty Ltd.^[123]  He first saw another doctor in that practice, on 1 June 2012.    
93. [93]
    Dr Arocena saw the plaintiff on 8 and 22 June, 6 July and 7 August 2012.  In July 2012 Dr McPhee’s reports dated 28 March 2012 and 5 July 2012 were provided to Dr Arocena.
94. [94]
    Following this, on 7 August 2012, Dr Arocena wrote a letter addressed to Giacinta Gardiner, of the defendant:

“I have reviewed [the plaintiff] today.  My recommendation will be based on Dr Mcphees recommendation that is for Nicholas to go back to normal or usual duties and the treatment is mainly self rehabilitation.  Nicholas is a forklift driver and the main trigger for pain in his lower back is actually driving the fork lift. He is also on gradual return to work program as far as I am aware but he has no success.  I have been realistic to Nicholas since I first reviewed him in our clinic, at present he still has subjective on and off pain, which is mostly related to forklift driving.  If that is the case the only option left for him is to stop driving forklift and possibly change work.  I advised him to talk to you if there is any other option for him.”

95. [95]
    It seems this letter was given to the plaintiff, to give to Ms Gardiner, which he did.  The plaintiff said he then had a discussion with Ms Gardiner about other work tasks that he could do, and the plaintiff’s evidence was that she suggested he could be trained to work in the radio room.^[124]  Mr Andrew Hack, the regional manager of the defendant for Brisbane and New South Wales, in his oral evidence confirmed that was not in the context of retraining the plaintiff for another role, but only to provide alternate duties until he could resume forklift driving.  He said it was never to be a full time position, and nor did one exist at the time.^[125]
96. [96]
    In his second report dated 29 August 2012,^[126] Mr Singleton noted that on that date the plaintiff “presents reporting reduced lower back (VAS 4-5/10 worst^[127]) levels” and that he “demonstrates a grade 4+ or higher functional core strength” (p 5).  In his oral evidence he explained that the plaintiff had attained the maximum functional strength required as part of the rehabilitation program, grade 4+ being what is considered reasonably necessary to undertake anything that would be typical of activities of daily living, including work-related duties.  When asked if that would have been sufficient for him to carry out duties of a forklift driver, he said “You would think so”.^[128]
97. [97]
    Mr Singleton administered the DASS test again on 29 August 2012, and the results were 2 for depression (normal), 0 for anxiety (normal) and 6 for stress (normal) (p 6).
98. [98]
    Mr Singleton stated, at the end of the report that, given the subjective and objective progress outlined in the reassessment of the plaintiff outlined in the report, he was “discharging [the plaintiff] from our supervision as it is my view that he has attained maximum medical improvement for his presentation from the intervention he has undertaken to date”.
99. [99]
    It is apparent from Mr Singleton’s patient notes^[129] that when seeing the plaintiff on 29 August 2012, the plaintiff told him he was finding his lower back was aggravated from an increase in overtime; that he can tolerate floor duties and office duties with pain, but not forklifting; and that he is concerned forklifting will aggravate if he continues so he refuses to return.  Mr Singleton’s notes record that he advised “trial for another 4-6 weeks at current hours to see if pain levels reduce”.  In cross-examination, when it was put to him that this recommendation did not appear in his report of 29 August, Mr Singleton explained that the plaintiff was by then “on his maximum hours.  It doesn’t mean he needed to undertake rehabilitation.  So we discharged him”. 
100. [100]
     On about 3 September 2012 a return to work plan was presented to the defendant, which showed him increasing over a 3 week period, from 4 hours a day forklift driving (with 4 hours other “suitable duties”), to 6 hours (with 2 hours of other suitable duties), then to 8 hours forklift driving.^[130] 
101. [101]
     The plaintiff said he was given this document by Giacinta Gardiner, and asked to sign it.  He refused, saying “I told her that I’ve attempted to drive forklifts already on numerous occasions and I couldn’t do so because of the pain, the aggravation I get in my back.  And I – it says on here to start off with four hours a day and I was struggling to do five minutes so I didn’t see that I could complete this”.^[131]
102. [102]
     The plaintiff was then issued with a “show cause” letter dated 3 September 2012.^[132]  As Mr Hack explained:

“We had had various medical opinions, psychological assessments done and all of them had come back to us saying that Mr Stark was fit for normal duties, and given the period of time that we had been engaged with the rehab plan and getting ready, we felt that we exhausted all medical options.  We’d been to – you know, a plethora of specialists and psychological assessments and so forth who all said that he was fit to return to work, so we took the approach that, well, we considered him to be fit and therefore, you know, we got him in for a meeting and asked him to resume normal duties.”^[133]

103. [103]
     The plaintiff said that when he received the letter, he tried to get an immediate appointment with Dr Reilly, to see what she had to say.  He could not get an appointment with her until later in September.  So he went to his then GP instead.  Dr Sidhom’s notes refer to an attendance by the plaintiff on 4 September 2012, on which occasion Dr Sidhom recorded:  “Pt arrived today asking for a medical certificate confirming that he isn’t allowed to drive the Fork lift as he gets lower back pains when he drives.  Has been advised to see the treating Dr Mcphees who recommended that he should go back to work for normal duties … [unclear due to copying] mainly self rehabilitation”.^[134]   Dr Sidhom did not give the plaintiff a medical certificate.  It seems the plaintiff did not return to Dr Sidhom after this.
104. [104]
     When the plaintiff went to work on 4 September 2012, he attended a meeting with Mr Hack (and other staff of the defendant, but the evidence is somewhat inconsistent as to who^[135]), and a union representative the plaintiff took with him.  Essentially the plaintiff was told to either commit to the return to work program by signing it, or his employment would be terminated.  Since he would not sign the plan, his employment was then terminated.^[136]
105. [105]
     The plaintiff did go to see Dr Reilly, on 18 September 2012, following which Dr Reilly reported back to Dr Sidhom:

“[The plaintiff] has come to see me today as he has been told he should be on normal duties by workers compensation.  Nicholas has been on full hours for some time now and when he attempts to drive forklifts then his pain is exacerbated.  He does wake at night with pain regardless of what work he does.  I have explained to [him] that at nine months following his injury he is really stable and stationery as his symptoms haven’t changed in some time.  This doesn’t necessarily mean he is 100% better and he certainly is unable to drive forklifts and I have recommended, that as he no longer has a job, that he look for alternative work which would not involve such jerking activities.  I haven’t arranged to see him again.”^[137]

106. [106]
     Dr Reilly’s notes of 18 September 2012 record that the plaintiff “managed full hrs on light duties, no pain”, but “when driving fork lift – more pain”, and “occas wakes with pain 3 out of 7 nights”.^[138]
107. [107]
     Dr Reilly explained in her oral evidence that, in writing the second last sentence set out above, she was essentially making an assumption that he was driving a forklift on uneven rocky ground, and that driving the forklift involved jerking (which she explained was her own assumption, not something the plaintiff said to her).^[139]  In cross-examination she was asked whether she would place any restriction on him driving a forklift, if she was told the surface where the plaintiff was driving the forklift was a smooth concrete surface, and that there is no bumping associated with the driving.  She said “[n]ot if I thought that he was driving a smooth surface in a well padded forklift fleet without any jerking”, although added that she would always restrict a person within their pain allowances and would have increased his tolerance as able.^[140]  That is, I infer from Dr Reilly’s evidence that, as a treating practitioner, she would rely upon the subjective complaints of pain from her patient, in terms of making recommendations to them about their levels of activity.  I do not interpret her statement that “he certainly is unable to drive forklifts” as being based on anything other than that.
108. [108]
     Mr Hack described the surface of the site at Eagle Farm as “pre-tilt slab construction”, with minimal joins (normal expansion joints that you get inside a warehouse), which were maintained regularly with caulking.  He said it is what is called in the trade a “broom finish”.^[141]  The plaintiff’s evidence was also that the floor surface of the defendant’s factory where he worked was smooth finished concrete.^[142]  
109. [109]
     I will return to this issue, regarding the activity of driving a forklift, in addressing the occupational therapist, Nancy Stephenson’s evidence below, but turn now to the medical evidence in the post-rehabilitation period.

Medical evidence – post-rehabilitation period

Dr McPhee

110. [110]
     Although Dr McPhee did not see the plaintiff again, he was asked by the defendant, in September 2012, to provide an assessment of the plaintiff’s impairment of the injury to his lower back, which he did on the basis of his two prior assessments and reports.  In his third report, dated 25 September 2012,^[143] he described the “current status of the lower back injury” as follows:

“[The plaintiff] has mechanical low back pain without lower limb symptoms.  He has voluntary restriction of lumbar spine movements.  His straight leg raising and neurological examinations were normal.  There was clinical evidence of abnormal illness behaviour indicating amplification of his symptoms and impairment.  An MRI scan of his lumbar was normal indicating no obvious underlying cause for his ongoing symptoms.”^[144]

111. [111]
     In the result, Dr McPhee determined that “[t]here is no impairment (the claimant has symptoms without objective evidence of impairment by way of loss of movements or neurological signs).”
112. [112]
     In relation to the plaintiff’s evidence that he had tried to return to driving a forklift, and on each occasion had reported, after two to three minutes, suffering from sharp pain that was caused by jolting or jarring of the forklift, Dr McPhee said, in his oral evidence that:

“I think the issue here goes far beyond the physical injury.

… with every injury there is a sort of psychological process that goes with it, and just because somebody doesn’t get back to work it doesn’t mean that physically he wouldn’t be capable of getting back to work, but there are other issues that block his return to work, and … There are a number of abnormal clinical findings and there were a sufficient number to say that at time he had abnormal illness behaviour.”^[145]

113. [113]
     Dr McPhee described abnormal illness behaviours as “inappropriate physical findings that are not consistent with the perceived underlying condition, and which can be found by alternative testing to be not appropriate, to be inaccurate”.^[146]  In the case of the plaintiff, Dr McPhee said the “abnormal illness behaviours” are the behaviours he lists under “current status” on p 2 of his report dated 28 March 2012,^[147] which is set out at paragraph [57] above.
114. [114]
     When asked, with respect to abnormal illness behaviour, whether there is an element of truthfulness or otherwise with respect to the presentation of the complaints, Dr McPhee said:

“Look, the vast majority, it’s at a subconscious level, and I could never say just by talking to a patient that, you know, it’s at a level higher than that and they are conscious what they do.  And that’s why I say you really need independent observations.  This is where video surveillance comes into it, yes.  Every now and again you’ll get somebody who’s, you know, caught … riding her dune buggy and jet ski and bush bashing on a motorbike.  I mean, people with back problems don’t go round doing those.   They don’t lift lounges – three seat lounges.  They don’t – you know.  But, you know, most people, it is subconscious.  It’s the way they’ve developed their disorder.”^[148]

Dr Wallace

115. [115]
     On 13 November 2012, the plaintiff was seen by Dr Malcolm Wallace, orthopaedic surgeon, for the purposes of a medico-legal report, at the request of his then solicitor.  Dr Wallace provided a report dated 20 November 2012.^[149]  In terms of “current symptoms”, Dr Wallace recorded that:

“Your client states that he has ongoing lower back pain.  This is mechanical in nature, worse with any bending, lifting or twisting.  It radiates intermittently into both lower limbs and posterior thighs without neurological symptomatology.

With respect to his ankles, he states that his right ankle has settled but he has ongoing recurrent inversion sprains in his left ankle and has problems walking over rough ground.  There is no pain in the left ankle.”

116. [116]
     In the “further history” section of his report (p 2) Dr Wallace recorded: “He states that his ankle pain settled but he continued to have lower back pain”.  In his oral evidence Dr Wallace said what that means is that “his ankle was not giving him any more pain”.^[150]
117. [117]
     In relation to the reference to pain radiating intermittently into both lower limbs and posterior thighs without neurological symptomatology, Dr Wallace confirmed he is here referring to general pain radiation, as opposed to true nerve pain.^[151]  Similarly, Dr McPhee said, of what Dr Wallace recorded, “that’s referred somatic pain.  That’s not radicular pain.  Radicular pain doesn’t go into two legs; it can only go into one leg, because it only catches one side, whatever the cause is.  And radicular pain should always go below the knee”.^[152]  Dr McPhee also confirmed that when he saw the plaintiff there was absolutely no indication of any pain below the buttock (based on a pain drawing the plaintiff did).^[153]  Likewise, the plaintiff had made no such complaint to Dr Reilly, either before this date, or after (see discussion below of the plaintiff’s attendance with Dr Reilly on 4 September 2013).
118. [118]
     Dr McPhee’s evidence was that there is “no scientific or reasonable explanation” why a person such as the plaintiff, with a soft tissue injury, with a normal MRI, who had not previously had such pain, and without any complaint of performing any strenuous activity, would complain of radiation of pain down the back of his thighs, sometimes to the knee.^[154]
119. [119]
     The significance of this issue is that for a DRE II impairment rating, such as Dr Wallace gives the plaintiff, the patient has to have radicular pain (whether verifiable or not).^[155]
120. [120]
     In terms of Dr Wallace’s reference to having ongoing recurrent “inversion sprains”, I note that Dr Saxby (referred to below) said that an “inversion sprain” implies damage to the ligaments, as opposed to your ankle just giving way, with no sprain, and if the plaintiff is not reporting any pain, then he probably is not having “inversion sprains”.^[156]  Dr Wallace, in his oral evidence, said his impression from his notes is that what the plaintiff was describing was a feeling of instability – that is, a giving way of the ankle - as opposed to a true sprain.^[157]  
121. [121]
     This was also a new complaint, not previously made to Dr Reilly. The plaintiff’s explanation, for why he later told Ms Stephenson (the occupational therapist he saw in June 2014) about pain and instability in his ankle, but had not mentioned it to Dr Reilly, was that the questions asked were different (although did not elaborate on that) – and that when he spoke to Dr Reilly he “hadn’t really attempted to go for walks and stuff” and once he started walking he realised that he’d get pain through it after walking a long distance.^[158]  I do not accept his evidence about this.  Plainly, he experienced no pain or instability in his ankles when he saw Dr Reilly over many months, or he would have mentioned this to her.  When Dr Wallace examined him, he reported no pain, although apparently some instability.  The surveillance footage from March 2013 reveals a relaxed attitude by the plaintiff to jogging up and down stairs, suggesting a lack of concern about ankle pain or instability.  Consistently with that, he reported to Dr Ballenden in January 2014 that his ankles are not a real issue and he does not even think about them (referred to below).
122. [122]
     Of his own examination of the plaintiff, Dr Wallace recorded:

“Your client was 165cm in height and he weighed 60kg.  He walked with a normal gait and there was no spinal deformity.  He was tender over the lumbosacral junction. He had a full range of motion in forward flexion, extension, lateral flexion to left and right.

Examination of the left ankle revealed no calf wasting, no swelling or deformity about the left ankle.  There was no localised tenderness.  He had a full range of motion in the ankle, subtalar and mid-tarsal joints. 

Straight leg raising was equal bilaterally in the lower limbs and there were no neural tension signs.  He had normal muscle bulk, tone and power in the lower limbs. He had symmetrical deep tendon reflexes of normal amplitude and down going plantar responses.”^[159]

123. [123]
     Dr Wallace was of the view that the plaintiff did not require any further investigations for his back, would not require surgical intervention, and that he had reached maximum medical improvement with respect to his back.  Using the AMA Guides, 5^th edition, Dr Wallace expressed the opinion that the plaintiff has a DRE II category impairment of the lumbar spine, according to table 15.3 of the Guides, which allows a range of impairments between 5-8%.  In Dr Wallace’s opinion the plaintiff has a 5% whole person impairment.^[160]
124. [124]
     In his oral evidence, Dr Wallace confirmed that in reaching this opinion, he relied on the plaintiff’s complaint of radiation of pain.^[161]  This is also confirmed in Dr Wallace’s separate report, dated 31 July 2013, in relation to the surveillance video.^[162]
125. [125]
     The plaintiff did not mention to Dr Wallace that he had pain on urination, defecation and ejaculation, nor did he write any of those symptoms in the questionnaire he completed for Dr Wallace.  Dr Wallace said he would have suggested further investigations if any of those symptoms had been mentioned.^[163]
126. [126]
     In relation to the left ankle, Dr Wallace referred to the “recurrent inversion sprains” as suggesting that the plaintiff has “a lateral ligament complex injury”, but said in order to assess him under the AMA Guides, he should undergo valgus stress views and plain x-rays of the ankle.^[164]
127. [127]
     Dr Wallace prepared a further report dated 10 February 2013, after receiving the results of those x-rays.^[165]  He noted that the valgus stress x-rays reveal no significant abnormality and said:

“Strictly according to Table 17.33 of the Guides, your client cannot be assessed as having an impairment with respect to the unstable left ankle nevertheless he does present with ongoing instability in the left ankle and in spite of the normal plain x-rays it is my opinion that he has ligament laxity as yet not demonstrated on the plain x-rays which is not a particularly sensitive imaging technique.

It is therefore my opinion that in spite of the normal x-rays he should be classified as having an additional 4% whole person impairment with respect to his left ankle.”^[166]

128. [128]
     Dr Wallace’s explanation, in his oral evidence, was that on the basis of the history from the plaintiff, of instability in his ankle, he would expect an x-ray done by himself to show some instability.  He said generally, on clinical examination you cannot establish ligamentous laxity of the ankle.^[167]  

Dr Saxby

129. [129]
     On 17 June 2013, the plaintiff was seen by Dr Terence Saxby, another orthopaedic surgeon, who specialises in disorders of the foot and ankle, at the request of the defendant.  Dr Saxby produced a report dated 20 June 2013.^[168]  Dr Saxby recorded that the plaintiff stated his right ankle had fully recovered and he has no ongoing trouble.  He recorded that the plaintiff “has ongoing troubles with his low back pain and some minor problems with his left ankle.  With regards his left ankle, he states that he has intermittent pain.  It does feel somewhat insecure but gives way very infrequently”.  
130. [130]
     This may be contrasted with what the plaintiff told Dr Wallace, namely, that he had no pain in his left ankle.
131. [131]
     Of his own examination of the plaintiff, Dr Saxby noted “[h]e walks without a limp.  There is no obvious deformity.  He is able to walk on his tiptoes and his heels without problems.  On specific examination there is mild lateral tenderness of his ankle joint but he had full range of motion of his ankle joint…”.
132. [132]
     Dr Saxby diagnosed “a soft tissue injury of both ankles”, nothing his right ankle has fully resolved, and he has “some minor ongoing discomfort in his left ankle”.  Using the AMA Guides, 5^th edition, Dr Saxby said “there is no objective loss, and that is to say that he has full range of motion and his ankle is stable to ligamentous testing.^[169]  There is no muscle wasting and therefore I believe there is a zero degree permanent impairment with regards his left ankle”. 
133. [133]
     Of the different view expressed by Dr Wallace, Dr Saxby seemed to agree that x-ray testing can be problematic because it depends on how the x-ray people do it, but noted nonetheless that the Guides spell out that in order to assign an impairment rating “you’re supposed to have so many more shifts compared to the other side”.^[170]  But more importantly, Dr Saxby noted that he conducted his own examination, in order to determine if there was any laxity, noting “I would say he has no excessive movement, therefore he has no impairment”.^[171]  As Dr Saxby notes, Dr Wallace does not, in his reports, seem to quantify whether the plaintiff’s ankle is unstable or not when he examines him.  Dr Wallace bases his opinion on the history the plaintiff gives of his ankle giving way. 
134. [134]
     Dr Saxby said he believed the plaintiff should be able to return to any type of employment he is qualified to do.  He also said “I believe his ankle is a minor component of his disability as I understand his main problem is low back pain and he is also being treated for psychological problems following his injury”.

Dr Mathew

135. [135]
     The plaintiff was examined by a psychiatrist, Dr Mathew, on 19 November 2012, at the request of his solicitors.
136. [136]
     In his report dated 19 November 2012, under the heading “presenting psychiatric symptoms”, Dr Matthews said:

“[The plaintiff] was not anxious when operating a forklift.  However, he said that his back pain restricted this work.  [The plaintiff] told me that he was anxious in proximity to forklifts.  He was fearful of being reinjured…  He was anxious, ‘even when they’re at a safe distance.  It’s hard to explain really’.  He spent two months ‘out on the floor, for an hour or two a day.  His Psychiatrist attempted to assist him in negotiating this fear.  However, he remained anxious and vigilant.  ‘You’ve always got to be wary, but a lot more than I used to do’.

Mr Stark reported troubling nightmares after the accident.  ‘Not as much exactly what happened; just like being hit by things and having the same reaction’.  His sleep was disrupted.  He continued to occasionally experience nightmares now.  ‘I do still wake up sometimes with bad anxiety from the dream.  I try to calm myself and get back to sleep’.”^[172]

137. [137]
     Of the contrast between this, and the plaintiff having told Dr Rice in June 2012 that his anxiety symptoms with respect to forklifts had resolved, the plaintiff said he was not sure what he told Dr Rice, but he disputed that his anxiety symptoms had resolved completely.^[173]
138. [138]
     But in terms of what he told Dr Mathew, the plaintiff said he was not saying he had significant anxiety with respect to forklifts, just some feeling of anxiousness, but not such as to stop him from being in the vicinity of forklifts on the factory floor.  He said he coped with that.^[174]
139. [139]
     As for the difference in terms of nightmares reported to Dr Rice and Dr Mathew, the plaintiff confirmed that the nightmares had decreased in the period between June 2012 (when he saw Dr Rice) and November 2012 (when he saw Dr Mathew).^[175]
140. [140]
     Dr Matthews diagnosed the plaintiff as suffering from “posttraumatic stress disorder, chronic”.  His “diagnostic discussion” included the following:

“[The plaintiff] reported limitations in his daily activities.  He had previously been active with sport but was unable to pursue this as before.  He reported sexual limitations as a result of his injury.  He reported that he was no longer able to operate a forklift due to his back injury.

[The plaintiff] struggled with his inability to work and the financial ramifications of this.  He had been an active sportsman and his inability to pursue these interests weighed heavily on him.  Nevertheless, he did not develop a depressive illness as a result.  [The plaintiff] did, however, develop Posttraumatic Stress Disorder characterised by nightmares, irritability and anxiety when in proximity to forklifts.  He was not distressed when operating a forklift but he reported physically being unable to do so now.”^[176]

141. [141]
     I note that Dr Rice’s opinion was that the plaintiff did not meet the criteria for post-traumatic stress disorder, because he did not describe any thoughts or feelings at the time of the incident to suggest a response of “intense fear, helplessness or horror”.^[177]  He said he had post-traumatic anxiety^[178], which he said was the same thing as an adjustment disorder, with anxiety.^[179]
142. [142]
     Dr Matthews expressed the opinion that the plaintiff “is unable to work in an environment where he is a pedestrian in proximity to forklifts.  This limitation will remain in place for the foreseeable future.  He is, however, able to operate a forklift without undue anxiety”.^[180]  Otherwise, Dr Mathew said he is fit for full time work from a psychiatric perspective.^[181]
143. [143]
     At the time Dr Mathew saw the plaintiff, he had in fact been working in proximity to forklifts (for some months, in the lead up to his employment being terminated in September 2012).  In cross-examination the plaintiff agreed that when he was still working for the defendant, he was on the factory floor, and was around numerous forklifts, there being on his evidence 40 or 50 forklifts on a shift, and he was able to do that.^[182]   The plaintiff’s evidence was that “I can’t focus on the tasks I’m doing when I’m around forklifts”.^[183] He elaborated, in re-examination, that he can work in proximity to forklifts, but when they come closer to him, or reverse near him, he had to know where the forklift was before he was able to continue what he was doing.^[184]  But he agreed that he would have been doing that before the accident as well, keeping an eye out for where the forklifts were on the floor, as a matter of safety, given that there were 40 to 50 forklifts on the floor per shift.^[185]
144. [144]
     Dr Mathew’s diagnosis resulted in him expressing the opinion that the plaintiff has a permanent whole person impairment of 5% determined in accordance with the Psychiatric Impairment Rating Scale (PIRS).  Dr Mathew’s PIRS worksheets are attached to his report.  These indicate he had “little or no impairment” for self care and personal hygiene, social and recreational activities and travel; “mild impairment” for social functioning (referring to irritability, particularly towards partner) and concentration, persistence and pace (referring to mild subjective difficulties with memory) and “moderate impairment” for adaptation (referring to anxiety when in proximity to forklifts (but not when operating a forklift).^[186]

Dr Reilly

145. [145]
     Dr Reilly’s notes show that the plaintiff saw her again on 4 September 2013.^[187]  Following that consultation, on 4 September 2013, she reported back to Dr Sidhom,^[188] as follows:

“Thanks for sending [the plaintiff] back to see me now over 18 months following his accident causing him to have low back pain.  He has had ongoing pain since the injury and unfortunately lost his employment at the end of 2012.  He has been on Centrelink since then and has despite doing some computer courses not found any employment.  Nicholas has constant low back pain with no radiation.  It is particularly worse getting out of bed in the morning and it does warm up as the day goes on.  Occasionally he has pain that stops him sleeping and usually he only take Panamax occasionally and Endone as required when the pain is worse.  He finds his bowls (sic) and bladder function normally but having sex is a problem because of his back pain.  He does do swimming and lifts weights to keep his core strong.  Nick reports that he has stopped smoking 4½ months ago.

On examination [the plaintiff] has a normal forward flexion range.  He stands on his heels and his toes easily he can straight leg raise to 70º bilaterally and he has a normal neurological examination of his lower limbs.  I don’t think there is any point repeating his MRI which was normal acutely post injury.  I have explained to Nick that I cannot find a cause for his back pain and I most certainly will not fill in his total and permanent disability form as I do not believe that he is disabled so that he could not work in any job.

I have suggested he try pilates and continue swimming but other than this I have on real answers for him.  I haven’t arranged to see him again.”^[189]

146. [146]
     In terms of whether, on 4 September 2013, she would have asked the plaintiff about urination/defecation, Dr Reilly said she would have, “because when you think about back as an injury, you always have to worry about bowel and bladder dysfunction, so that’s asked about on every occasion”.^[190]  She reiterated this in cross-examination, noting that if bowel and bladder are involved at all, it makes orthopaedic surgeons a little bit anxious that there’s something more sinister going on.

Dr Ballenden

147. [147]
     In January 2014, the defendant’s solicitors engaged Dr Gavin Ballenden to conduct an assessment of the plaintiff.  Dr Ballenden is a consultant occupational physician and specialist in occupational medicine.  His report is dated 15 January 2014.^[191]
148. [148]
     Relevantly, under “current symptoms” (p 4), Dr Ballenden records:

“His current symptoms consist of central low back pain, which radiates across the lower back pain on each side symmetrically.  There was no referral.  There was no radiation into the legs.  He said this was a dull aching type of pain which can get sharper when he aggravates it.  He said it is worse with activity such as turning or twisting the wrong way, with driving over a prolonged period of time (40 minutes), with lifting, pushing, or bending.  These activities all aggravate his symptoms.  He stated he has a sitting tolerance of 40 minutes and driving tolerance of 40 minutes.  He can walk for 40 minutes.

…

The pain he said is dull and 24/7.  It has no effect on bowel or bladder…”^[192]

149. [149]
     The plaintiff said he does not remember whether he would have said that to Dr Ballenden or not.  I accept that, if Dr Ballenden has recorded it, that is what the plaintiff said.  As will become apparent below, January 2014 is after the plaintiff first made his complaints to Dr Salinas (of pain on urination, ejaculation and erection).  All that the plaintiff seems to have told Dr Ballenden about this is that his GP “is doing more investigations” and that his orthopaedic surgeon, Dr Reilly is “now looking at his hips and the pelvis” (p 5).
150. [150]
     Under “activities of daily living”, Dr Ballenden records that the plaintiff “can manage all self care and always has”.  He told Dr Ballenden he does not do the clothes washing or hanging the washing and “avoids carrying the basket”, and that his wife tends to do the supermarket shopping (p 4). 
151. [151]
     Dr Ballenden records that the plaintiff advised that his ankles “are ‘not a real issue and he does not even think about them’.  The main focus is his back” (p 5).  Again the plaintiff said he didn’t believe he said that to Dr Ballenden.  But I do not accept that.
152. [152]
     Dr Ballenden’s investigations of the plaintiff’s spine and ankles were both normal (pp 6-7).  He described the plaintiff as having subjective “symptoms only” presentation, which is not supported by clinical or radiological examination (p 7).  Dr Ballenden’s assessment of both the lumbar spine and the left ankle was consistent with Dr McPhee’s and Dr Saxby’s, respectively – that is, zero percent whole person impairment for each (p 8).
153. [153]
     Dr Ballenden’s opinion (at p 11) was that:

“As this man has no clinical, radiological or other evidence of physical or psychological injury or trauma there is expected to be no impact of future employability or work.  His injuries as assessed cannot and will not impact on his future work capacity or earnings.  The best thing this man could do would be to return to meaningful work as soon as possible. The health benefits of work are irrefutable.”

November 2013 – Dr Salinas and subsequent specialist referrals.

154. [154]
     It is necessary to deal separately with this next body of evidence, which commences with an attendance on Dr Salinas in November 2013, because of the defendant’s submission that the complaints for which Dr Salinas referred the plaintiff to a variety of specialists cannot be said to be causally related to the workplace accident.
155. [155]
     In July 2013, the plaintiff started to see Dr Salinas, at the Murrumba Downs Medical Centre, as his GP.  He saw her about 6 times between July and October, for other matters, making no complaint of any back pain.  He in fact at no time made any complaint to Dr Salinas about his ankles.^[193]
156. [156]
     When the plaintiff saw Dr Salinas on 7 November 2013, her notes record:

“- query regarding neuropathic pain

• -backpain – from previous WRI 2011 – case closed 2012
• -hit by reversing forklift on his back then ran over om teh (sic) ankle – previous working for NQX
• -pain is persistent-has gotten used to it –but has pain on urination, ejaculation and erection
• since the accident which he did;t have prior to the accident
• -Red flag questions^[194] not asked during the injury…”^[195]

157. [157]
     This is the first time that the plaintiff is recorded as reporting pain on urination, ejaculation and erection (per Dr Salinas’ notes).  It later changes to being expressed as pain on urinating, defecating and any sexual function (when the plaintiff is referred by Salinas to Dr Reilly – see below).  The plaintiff acknowledged that this was the first time that he had raised these issues with any doctor,^[196] but maintained he had these symptoms since the accident.^[197]
158. [158]
     In so far as it was suggested that this was only because the plaintiff had not been asked relevant questions previously, I reject that as unreasonable and inconsistent with the evidence.  In relation to the last note in the passage set out above– regarding “red flag questions” – it seems Dr Salinas’ comment was based on her enquiring of the plaintiff whether he had been asked those questions previously.   In so far as it may be inferred that he answered “No”, that cannot be accepted as correct.   For example, the notes from the Medibank Health Solutions practice (where the plaintiff subsequently saw Dr Arocena), the doctor the plaintiff saw on 1 June 2012 (not Dr Arocena, but another doctor at the practice) made detailed notes, including “Red Flags:  nil by patient”.^[198]  Furthermore, I have no doubt that Dr Reilly asked the plaintiff such questions, and likewise Dr McPhee and Dr Wallace. 
159. [159]
     The very clear inference is that the plaintiff had not experienced those symptoms previously (not that he was not asked appropriate questions by previous doctors).  Dr Reilly’s evidence made it clear that such symptoms would be of very great significance to her, and Dr Wallace also said he would have suggested further investigations if those symptoms had been mentioned.
160. [160]
     Dr Salinas ordered an x-ray of the plaintiff’s hip and pelvis and a CT of the lumbar spine. 
161. [161]
     She then saw him again on 11 November 2013.  On this occasion, she recorded, on the basis of what the plaintiff said to her, “still afraid to drive a forklift – never thought its going to happen to him”.^[199]  Dr Salinas also noted “for possible referral to urologist – re post injury” and “for MHCP next visit – for referral to Psych re:  PTSD”.^[200]
162. [162]
     Dr Salinas saw him again on 15 November 2013, on which occasion she administered the DASS test (a self-reporting test for depression, anxiety and stress).  The results were 22 for depression (severe), 14 for anxiety (moderate) and 22 for stress (moderate).^[201]  There is a marked contrast between these results, and the results from August 2012 when Mr Singleton (Cor) administered this test (and the results were all normal).
163. [163]
     Dr Salinas then proceeded to refer the plaintiff to a variety of specialists, including Dr Hayes (also an orthopaedic surgeon); Dr Reilly, Dr Meyer (urologist) and Dr Bradfield (neuro-physician), none of whom could find any reason for the symptoms described by the plaintiff.
164. [164]
     The plaintiff saw Dr Hayes on 9 December 2013.  Dr Hayes reported back to Dr Salinas that he does not believe the plaintiff requires any surgical intervention, and that he proposed referring the plaintiff to Dr Bill Ryan “who is well versed in the treatment of functional non-structural low back pain”.^[202]   There was no evidence that the plaintiff saw Dr Ryan; indeed the plaintiff said he could not get in with Dr Ryan.^[203]
165. [165]
     Dr Salinas referred the plaintiff back to Dr Reilly, whom he saw on 19 December 2013.  Dr Reilly’s notes record, among other things, “pain with urinating, defecating and any sexual function”.^[204]
166. [166]
     Although the referral letter is not in evidence, I infer that information came from Dr Salinas (based on what the plaintiff is recorded to have said to her on 7 November 2013), and note that it is inconsistent with what Dr Reilly herself had recorded as recently as on 4 September 2013 (bowels and bladder ok).
167. [167]
     Following that consultation, on 19 December 2013, Dr Reilly wrote to Dr Salinas, as follows:

“Thanks for sending [the plaintiff] back to see me with regard to his ongoing back pain.  I am very pleased to see that Nick has gone on and studied his Business Certificate which he has just completed.  Unfortunately his back and pelvic symptoms are really interfering in his life.  He describes pain more so in his lower back which sounds like sacroiliac joint pain but he also does describe some left hip irritability.  As you know he has pain with urination, defecation and any sexual activity.  He is taking Endones maximum of 2 a day but he does try to limit these.  I wonder whether it might be worthwhile considering starting him on a Norspan patch?

Clinically, his left hip is irritable, and FABER testing for his SI joints causes extreme discomfort.  I have sent him for a rheumatological screen including HCLA R27 and also an MRI of his pelvis and left hip.  I will see him after this to see if that gives us any answers.”^[205]

168. [168]
     As Dr Reilly explained in her oral evidence, this was the first time the plaintiff described pelvic symptoms to her.  She said: 

“These were all new symptoms and I honestly thought when I saw him at that appointment that he might have had something terrible going on in his spine or pelvis or something that was totally unrelated, but I hadn’t seen [the plaintiff] for a while and this – he paid for that appointment, so it wasn’t Work Cover.  It wasn’t even related to his injury”.^[206]

169. [169]
     She also explained, in relation to her comment in the letter that what the plaintiff was describing “sounds like sacroiliac joint pain”:

“So the sacroiliac joints are on either side down in the pelvis where the sacrum joins the pelvis basically, and they’re quite close to the spine, and I just thought that he might have had something inflammatory going on because his pain was just unusual and it wasn’t like he had presented before which is why I sent him off for all of the inflammatory strain because if he had an inflammatory condition effecting those joints, often its ankylosing spondylitis and it shows up on a blood test.”^[207]

170. [170]
     Dr Reilly did see the plaintiff again, on 21 January 2014, and reported back to Dr Salinas that:

“… all of his bloods through are essentially normal and his MRI of his hip and pelvis is normal too.  It has been two years nearly since his spine was MRI’d so for completeness sake I am doing this.  I am really not sure what is going on with him and I may need to refer him to Dr John Paul Meyer who is a Urologist.  I will let you know what we end up doing.”^[208]

171. [171]
     The MRI of the plaintiff’s spine also came back normal.^[209]
172. [172]
     One month later, on 27 February 2014, Dr Reilly wrote to the plaintiff’s solicitor, in the following terms:

“I have received a form to sign [the plaintiff’s] total and permanent disability claim.  I have treated [the plaintiff] since his injury at work on the 3/01/12.  My initial consultation with Nick was on the 8/2/12 and I have been seeing him intermittently since then.  I feel I am unable to complete this disablement claim because I have always had normal imaging.  I am not questioning that [the plaintiff] has pain, but I have no cause for his pain.  And I have always treated him as a whiplash/soft tissue problem, following his accident.  I am still at a loss to explain all of his urinary/pelvic symptoms for which I will be referring him to a Urologist.  Even on his most recent MRI of his lumbosacral spine the films are normal.  Nicholas has also told me that he is finished a Diploma in Business, so I feel I am unable to give him a total impairment disability.”^[210]

173. [173]
     Dr Reilly confirmed in her oral evidence that the “urinary/pelvic symptoms” were not, in her opinion, related to the initial soft tissue injury.^[211]  She also confirmed that she cannot, based on her experience, find any reason why the plaintiff would be in pain.^[212]
174. [174]
     Dr Reilly did not ultimately refer the plaintiff to Dr Meyer.  As she explained in her oral evidence, “I didn’t because all of his MRI scanning was negative, and a urologist is not going to be able to – on further researching and looking into it, a urologist is going to only be able to deal with any urinary problems, not something that’s related to bladder and sexual dysfunction.  So I didn’t think I would waste [the plaintiff’s] time or money”.^[213]
175. [175]
     But it seems that Dr Salinas did make that referral, on 3 March 2014.^[214] 
176. [176]
     I note that on that same date, 3 March 2014, Dr Salinas records an attendance by the plaintiff.  Her notes include “back from holiday”, “actually enjoyed the cruie (sic, cruise).”   She confirmed that the plaintiff had told her that, also confirming generally that everything the patient tells me is written in the notes.^[215]  The plaintiff denied that he had ever been on a cruise.^[216]  He thought the holiday that Dr Salinas was referring to was a holiday that he went on to New Zealand with his parents.^[217]
177. [177]
     Having been referred by Dr Salinas, the plaintiff saw Dr Meyer, Urologist, first on 23 April 2014, and then on 21 May 2014 (when a CT scan of his pelvis, and the results of urine and semen tests were available).^[218]  He was reviewed in respect of his complaints, recorded by Dr Meyer as, “painful ejaculation [that] commenced following an accident where he was hit from behind ... by a forklift”.^[219]  It seems Dr Meyer could find nothing on the plaintiff’s CT scan which would explain it, and a urine culture and semen analysis were both fine as well.  Dr Meyer posited a few suggestions as to the cause (including side-effect of medication; infection; or “psychological etiology”).   Dr Meyer noted that he was “pleased to hear that [the plaintiff] is also being reviewed by a psychologist which I feel is a very sensible thing to do”.^[220]  The plaintiff does not seem to have visited Dr Meyer again.
178. [178]
     There is no mention in Dr Meyer’s two letters of the plaintiff reporting pain on urination or defecation.  The plaintiff says he did mention these to Dr Meyer.^[221]  I do not accept the plaintiff’s evidence about that.  In my view that would be highly relevant information that Dr Meyer could be expected to mention in his letters.  To the contrary, what Dr Meyer does record is that the plaintiff does not report any lower urinary tract symptoms, and describes a normal urinary stream.
179. [179]
     On 26 June 2014 the plaintiff saw Dr Salinas, and she recorded “pain is constant and stays throughout sex and increases during ejaculation, takes about 2 hours after sex that the pain settles down” and “has ejaculated once since commencing the counselling; usually has to stop himself from ejaculation because of the pain”.^[222]
180. [180]
     Dr Salinas also referred the plaintiff to Dr Bradfield, a neuro-physician.^[223]  The plaintiff saw Dr Bradfield in September 2014.  Dr Bradfield produced a report dated 19 September 2014.^[224] 
181. [181]
     Dr Bradfield recorded that the plaintiff:

“… still complains of back pain in the low lumbar region radiating out into the flanks.  He describes it as a moderate constant ache.  The pain is aggravated by standing, prolonged sitting, prolonged walking, bending, twisting and also by sexual intercourse and after sexual intercourse.  It is eased temporarily by changing his posture and at times, but not always, is eased with resting.

When severe the pain may spread and he notices a tingle from the base of his buttocks, down the posterior aspect of the thighs [the back of the legs] halfway down the thigh – more marked on the left which is a tingling sensation, which clears quickly when he rests.

He is of the opinion his short-term memory is not as good as it was prior to the accident occurring and is gradually deteriorating… He considers his math and English^[225] is not as good and these aspects of his knowledge are worsening.

Other complaints are at times when he lies flat on his back he can experience objective rotary vertigo.^[226]  This can persist for up to forty five minutes and if he remains in that posture and it is not eased by rolling to the right or left, but is completely eased if he gets up and walks around and when he gets up and walks around walks in a steady fashion but may feel nauseated for a time, but associated with this symptom he has no disturbance of his hearing or tinnitus

He informed me he has had numerous MRI scans of his spine and sought numerous opinions from orthopaedic specialists and spinal specialists.  His pain was not helped by facet blocks. He had no other neurological complaints.”

182. [182]
     By reference to his own neurological examination of the plaintiff Dr Bradfield concluded that he “could find no sign to indicate the presence of any sinister intracranial, spinal cord, nerve root or peripheral nerve disorder” and that he did “not consider as a result of the accident in January 2012 that [the plaintiff] has sustained any neurological impairment”.^[227]

Surveillance video

183. [183]
     Surveillance footage taken of the plaintiff on 26 March 2013 and then 22 and 23 January 2014 was tendered in evidence.^[228]
184. [184]
     The footage on 26 March 2013 begins with the plaintiff and his wife inside some kind of service centre (perhaps the transport department), and shows him leaning on a counter, with his back to it, and both elbows on the counter, twisting to speak to his wife.  It also shows him weight bearing on each ankle, one at a time, and at times also crossing the opposite ankle, over the ankle that he is weight bearing on (not showing any particular preference for one or the other).    It also shows the plaintiff and his wife sitting in the waiting area for a period of time.  Later on, the plaintiff and his wife are shown walking up some stairs to a bank.  The plaintiff shows no difficulty, and is not holding onto the handrail.  He then comes out alone, jogs lightly down the stairs, in the centre, not holding the handrail.  A short time later he goes back up the stairs, taking them two at a time, again not holding the handrail.  The plaintiff shows no sign of discomfort or restriction. 
185. [185]
     The footage on 22 January 2014 shows the plaintiff and his wife walking around a shopping centre, going into various shops.   Once again, the plaintiff on a few occasions is shown standing weight bearing on one leg, with the opposite leg crossed over at the ankle, changing from left to right with no obvious preference.   The plaintiff is shown fully squatting down in another store, with his weight on the balls of both feet, and in this position bending his body to look up at his wife.   He is then shown sitting in a food court / coffee shop area for a period of time, appearing to laugh and chat with his wife.  Under his chair, his ankles appear to be crossed, and he occasionally bounces his knees / feet.   He twists and turns in his seat to look at something behind him that his wife points out.  He leans right back over his chair, with both arms behind his head, appearing to stretch.
186. [186]
     The footage on 23 January 2014 shows the plaintiff carrying two bags of groceries to his car, and then shows him carrying a washing basket of washing to a laundromat.  He is shown looking in some shop windows while he waits, walking along the street, and sitting for a time talking to another person.  He later gets the washing out of a head height machine, having retrieved his washing basket from above head height.  He then carries the full washing basket back to the car, with one hand, resting it on his right hip, opens the car door with the other hand, and puts the basket in the car before driving away.  Again, there is no sign of any discomfort or restriction in any of this.
187. [187]
     Dr Wallace provided a report dated 31 July 2013, in relation to what I assume (because of the date of the report) is the earlier video footage taken on 26 March 2013.^[229]  Dr Wallace commented that:

     1. (a)
        In relation to the left ankle, the activities shown in the video were consistent with the examination he performed on 13 November 2012, because the symptoms then reported were “recurrent instability”, however there was no pain and a full range of motion in the ankle, therefore the plaintiff would have been able to perform the activities shown in the video.
     2. (b)
        In terms of whether activities in the video are consistent with a whole person impairment of the left ankle, Dr Wallace reiterated his assessment of impairment relates to instability alone, not pain or restriction of movement, so the activities are consistent.
     3. (c)
        Likewise, the activities in the video are consistent with Dr Wallace’s examination of the plaintiff’s lumbar spine on 13 November 2012, because in that examination he found no restriction of motion, nor any neural tension signs in the lumbar spine, and his assessment “was based on the history of his back pain radiating into the lower limbs”. 
     4. (d)
        He said the plaintiff “would have been able to perform the activities which I observed [in the video] if [he] had an impairment of the lumbar spine as they do not demonstrate any attempt at heavy lifting or repetitive manual work”.
188. [188]
     In his first report,^[230] under the heading current symptoms, Dr Wallace recorded the plaintiff’s back pain was “worse with any bending, lifting or twisting”.  In cross-examination, Dr Wallace’s attention was drawn to that part of the later video where the plaintiff picks up the basket of washing, puts it under one arm, carries it to the car and puts it into the car.  It was put to him that, if you expected worsening of pain on bending, lifting and twisting, those are activities where you would expect to see some indication of pain from the plaintiff on the video.  Dr Wallace agreed there would be.  When it was put to him that you could not see any indication of reserve or facial expression indicating pain in the video, Dr Wallace noted that he did not really recall the video, and could only read his comments in his report, but said he would have noted any indication of pain had he seen that, and he had not done so (in his report of 31 July).^[231]  In fairness to Dr Wallace, as I have noted, it does not appear to me he was shown the January 2014 video.  But I accept that the assumption put to Dr Wallace was correct, that is that there is no indication of reserve or facial expression indicating pain in the later video from January 2014.
189. [189]
     Ms McCook gave evidence of her impressions on watching the surveillance video.   She noted that the time frame, between when she had carried out her physical evaluation of the plaintiff, and when the video was taken, was about 12 months.  She noted that, on her earlier physical evaluation (June 2012) there were indications of restricted motion.^[232]  In comparison, she said:

“through the course of that video, full range of motion available, so between back extension, back rotation, full squat, full flexion, they almost demonstrated every mobility range that you could see in a medical assessment, and there was no evidence of restricted motion or wincing, and even holding postures.  So there’s visual of him standing full extended leaning back on a bench and rotated which for anyone with ongoing back pain problems would be difficult to do, and he did that both right and left as well as the full flexion elements.  There’s also visual of him running and down a set of stairs which is impact-loading and perturbation, which is similar – not dissimilar^[233] to sitting on a forklift, but that was one of the concerns relayed was the vibration and the jarring.  There appeared to be no issue with his ability to do that.  So big difference from where I had seen him presenting clinically when I had seen him previously.  And muscle mass as well.  So he was quite sort of thin – thinner muscle bulk around about the time, but he seems to have thickened up, which to me would indicate he’s been able to do more exercise and more activity which would link him to his apparent physical recovery”.^[234]

190. [190]
     Dr Ballenden’s comment about the surveillance footage was that it showed him in a normal display of activities of daily living, noting that he did not display any of the postural behaviours that people with “chronic” back pain have.  He said the activity in the video, including the jogging up the stairs, indicates a level of physical activity capacity which is within normal and at a level which would not prevent work.^[235]

Occupational therapists’ evidence

191. [191]
     In March 2013, the plaintiff was assessed by Ms Natalie Schultz, a “rehabilitation consultant – OT”, with an organisation called Strive Occupational Rehabilitation.  She prepared a report dated 6 March 2013.^[236]  Among other things, in this report, Ms Schultz noted that the plaintiff reported that he avoided “mobilising on stairs secondary to left ankle and low back symptoms; able to mobilise on stairs at a slow pace with use of handrail as needed” (at p 2) and that he stated he was independent with most self care tasks, although his wife “assisted with washing his legs and feet as needed secondary to his symptoms” (at p 3). 
192. [192]
     What the plaintiff reported to Ms Schultz about stairs is inconsistent with what can be observed in the March 2013 video footage. 
193. [193]
     In terms of self care tasks, the plaintiff’s evidence at trial was that he could not bend down to wash his lower legs.  He agreed he could lift his leg up to wash his lower leg and foot, but said “at those times when my back was aggravated, it would cause me more pain to do so”.^[237]  His evidence about this, and what he reported to Ms Schultz, stands in contrast to the earlier reports that he was able to care for himself independently.  It is also in contrast with his ability to fully squat down in the video footage from January 2014.
194. [194]
     In June 2014, the plaintiff was referred by his solicitor to Ms Nancy Stephenson, an occupational therapist, for medico legal assessment.  She produced a report dated 24 June 2014.^[238]  The weight that I am prepared to give to Ms Stephenson’s assessment and opinion is diminished significantly by the fact that it is necessarily dependent upon what the plaintiff reported to her, which in my view is not reliable, in the context of the previous material, referred to at length above.
195. [195]
     For example, in terms of his left ankle, Ms Stephenson in her report notes:

“[The plaintiff] experiences an intermittent, sharp, shooting pain to the lateral aspect of the left ankle.  He reports weakness and a tendency for his left ankle to give way when he is mobilising down stairs or over uneven surfaces.  He has noticed that if he places more weight through his left ankle it is more likely to be unstable.  He has had several falls as a result of left ankle instability.”^[239] 

196. [196]
     In contrast, when seen by Dr Wallace in November 2012, he reported no pain in his ankle, and described a feeling of instability but made no reference to having several falls. In relation to Ms Stephenson’s record that he has “difficulty mobilising on stairs”, in cross-examination the plaintiff seemed to say “not all the time”, and it depended where he placed his foot on the stair that would cause pain in his ankle; and sometimes his ankle would feel like it’s going to give way; but that does not stop him jogging downstairs because he is not that concerned about it.^[240]  Six months before seeing Ms Stephenson, the plaintiff told Dr Ballenden that his ankles were not a real issue and he does not even think about them.
197. [197]
     In relation to his back, the “range of movement” recorded by Ms Stephenson on p 10 of her report revealed restrictions of various levels in extension, lateral flexion and rotation.  In contrast, when Dr Wallace saw him in November 2012 he reported that the plaintiff had a full range of motion in forward flexion, extension, lateral flexion to left and right”.^[241]
198. [198]
     Ms Stephenson’s report includes the results of a self-administered pain questionnaire (p 9) – the results of which are, in summary:  pain killers give very little relief from pain; it is painful to look after himself and he is slow and careful; he can lift only very light weights (which the plaintiff said was 8 to 10 kg); pain prevents him walking more than ½ mile (the plaintiff agreed he could walk 1 km); pain prevents him sitting more than an hour (the plaintiff said that was not correct, it does not prevent him, but it becomes uncomfortable); pain prevents him standing for more than one hour (again, the plaintiff disagreed with “prevents” and said it would just cause him more pain); he reports even when he takes tablets he has less than four hours sleep; he reports his sex life is nearly absent because of pain; pain has restricted his social life to his home; pain restricts him to journeys of less than one hour (although he agreed that he had taken plane journeys, eg to New Zealand, of longer duration than that).^[242]
199. [199]
     Ms Stephenson states in her report that these results gave the plaintiff a score of 60% which falls in the “severe disability” range.
200. [200]
     When seen in context, particularly in contrast to the earlier reports, but also by reference to the video footage of March 2013 and January 2014, what is being reported to Ms Stephenson by the plaintiff, and the result of her analysis of that indicating “severe disability”, just simply does not ring true. 
201. [201]
     Ms Stephenson’s report also includes a description of the work tasks involved in forklift driving (at p 24).  One of the matters identified under “work environment” is “jolting and jarring of driver could be frequent, depending on the nature of the surface being worked on”.
202. [202]
     As noted above, Mr Hack’s evidence was that the surface of the site at Eagle Farm as “pre-tilt slab construction”, with minimal joins which were maintained regularly with caulking.  He said it is what is called in the trade a “broom finish”.^[243]  The plaintiff’s evidence was also that the floor surface of the defendant’s factory where he worked was smooth finished concrete.^[244]
203. [203]
     What Ms Stephenson said, when it was put to her that there would be no jolting or jarring in a forklift being driven on such a surface, was that it would depend how it was driven, and that “these machines do jolt and jar around even on smooth surfaces”.^[245]
204. [204]
     In terms of the “work function/activity” identified by Ms Stephenson on pp 24-25, on the basis of Ms Stephenson’s oral evidence, save for one qualification, it does not seem that the plaintiff would be unable to do any of the activities.  The one qualification is that based upon his lifting restrictions, Ms Stephenson seemed to say he would be in the category of sedentary to light work, rather than light to medium.^[246]  However, Ms Stephenson in her written report expressed the opinion the plaintiff is no longer suited to driving a forklift because of his anxiety and reduced sitting tolerance.^[247]
205. [205]
     Apart from the evidence about the smoothness of the surface at the defendant’s Eagle Farm site, there was no objective evidence before me about whether or not there is jarring / bouncing etc when a person drives a forklift at that site.  I do not consider that I can make a finding that there is not.  However, that does not lead me to accept the plaintiff’s evidence about his inability to drive a forklift, for reasons which I address below.

Plaintiff’s evidence of continuing concerns

206. [206]
     The plaintiff’s evidence at trial was that he does not have any further pain in his left ankle.  He said he experiences instability, but “[n]ot very often.  It’s hard to say how often.  I don’t know.  It doesn’t happen every day, no.  It has happened in the last two weeks”.  He gave an example of walking downstairs too quickly and his ankle giving way.^[248]
207. [207]
     In terms of his lower back, his evidence was that, as at September 2012, when his employment was terminated, “I no longer had a sharp, constant pain in my back.  It was more of a dull ache.  It was still constant, but it wasn’t severe.  Only when it was aggravated.”  He said his back pain was aggravated by “[t]hings like driving a forklift, driving to and from work… sitting for more than an hour, standing for more than 40-50 minutes, bending, twisting…”.^[249]
208. [208]
     His evidence was that he still has a “constant dull ache” in his lower back, and when it gets aggravated “it gets more of a severe pain”.^[250]  The things that aggravate it, he said, are driving a car for long periods of time;  he said simple household duties are difficult, he has to break things up to complete them; and sexual activity.^[251]  He also described occasional pain on urinating, when his back is aggravated; sharp pain through his lower back when straining to defecate.^[252]
209. [209]
     He said he was not undertaking any recreational activities. His wife said they had not been rock climbing or motor bike riding since the accident.^[253] 
210. [210]
     The evidence regarding his ability to carry out household tasks was somewhat inconsistent.  The plaintiff’s wife gave evidence of having to help him with things like showering, but the timing was not clear.  She referred to helping him quite a lot in the first few months, and then after the first few months, helping him when she could see he was struggling.^[254]  She said she still helps him now, but “only when like he says he’s in pain”, saying “I may as well help him… with like help him dry or, you know – we usually have showers together so I just may as well just help him so he isn’t hurting his back… washing his back or his legs”.^[255]  In contrast, the earlier reports record that he was able to care for himself independently.^[256]
211. [211]
     The plaintiff gave evidence that he continues to take medication (currently Endone and Valium), but does not receive any other treatment.^[257]  His evidence was that he has been taking Endone on and off since the accident.   Endone was described as a narcotic analgesic.  The evidence about how frequently and how much Endone the plaintiff was or was not taking at particular times was somewhat confused.  The schedule of past pharmaceutical expenses tendered by the plaintiff (exhibit 4), which seems to reflect the most recent statement of loss and damage (exhibit 11) is quite different from the same schedule in the earlier statement of loss and damage (exhibit 10).  By the time the plaintiff saw Ms Stephenson, in June 2014, he told her he was taking 2 Endone tablets, 3-4 times per week on average.^[258]  Although Dr Ballenden said the level of medication being taken could be an indicator of level of pain, he said that for a person taking a couple of Endone a few days a week, he would regard that as indicating a level of pain controlled by a mild to moderate analgesic, rather than a strong opiate-based analgesic.^[259]  On the basis of the evidence before me, I do not find any support for the plaintiff’s subjective complaints of pain from his evidence of taking this medication.
212. [212]
     His evidence was that he and his now wife moved back in with his parents about a month or two after his employment was terminated.^[260]   They got married near Maleny and had a honeymoon at Airlie Beach, the plaintiff saying that was because “we didn’t exactly have the money we thought we’d have for our honeymoon”.^[261]  His wife likewise said they did not have the big wedding they had planned because they could not afford it, as they had to use their savings “to pay for everything” as the plaintiff no longer had an income, after September 2012.^[262]  Her evidence was that they did not go to Thailand for their honeymoon because it was too far and they did not know how the plaintiff would go on the plane.^[263]   He was asked about whether he had any restrictions in sexual activity on his honeymoon and he said yes, that “I couldn’t perform because of the pain in my back”.^[264]   The plaintiff’s wife gave evidence that their sexual relationship is very limited now.^[265]
213. [213]
     The plaintiff has not had any other paid employment since September 2012.
214. [214]
     There was no evidence at the trial that he has tried to drive a forklift again since September 2012.
215. [215]
     He has helped out at the fundraising sausage sizzles outside Bunnings, for the Redcliffe PCYC.  He said it is a 3 hour shift, cooking sausages and serving customers.  He said he has to take a break and sit down every 40 to 50 minutes.^[266]  Mr Noel Powell, who is the chairperson of the Redcliffe PCYC, gave evidence for the plaintiff.  Mr Powell met the plaintiff in about April 2014 when the plaintiff started volunteering at the sausage sizzles.  They occur every second Thursday.  He said the plaintiff has done about 8 shifts in the last year.  The shifts are 3 hours long.  He said the plaintiff would usually take three half hour breaks on each shift, and that the plaintiff told him he had a sore back and needed to take a break.^[267]
216. [216]
     The way the plaintiff presented to Mr Powell is inconsistent with the evidence that the plaintiff was able to work full hours at the defendant’s factory (albeit not on the forklift) by the end of August 2012.  It is also inconsistent with the surveillance footage from March 2013 and January 2014.  I do not see this evidence as corroborating the plaintiff’s subjective complaints of ongoing pain.
217. [217]
     In terms of anxiety, he gave evidence of walking past a construction site four to six weeks ago, and as he walked past the driveway, a forklift was reversing near the fence, and said “I just got shocked by it, little bit anxious but more shocked and just felt my body get tense and, yeah.  But I carried on walking and I was – I was all right”.^[268]
218. [218]
     In relation to nightmares, he said they have reduced, and “now they’re quite rare to have, maybe once or twice a month”.^[269]
219. [219]
     In terms of furthering his education, he has completed a Certificate III in Business^[270] and is in the process of doing his Certificate IV.^[271]   As noted above, he has not returned to complete his high school education, either year 10 or year 12, but acknowledged there was no impediment to him doing this, other than financial.
220. [220]
     He gave evidence that he has applied for employment, in administration roles.  There was tendered in evidence^[272] a large folder said to contain numerous “unsuccessful job applications”.  The index to this folder suggests the applications were predominantly made in 2014 and 2015, with a handful in October, November and December 2013 and two in March 2013.  Neither the plaintiff in his evidence, nor the plaintiff’s counsel in his submissions, sought to direct me to any particular document(s) in this folder to demonstrate that they were positions the plaintiff was qualified for or that he was otherwise capable of carrying them out.  A quick perusal of the folder reveals that it comprises printouts of emails generated by online job application websites confirming “successful delivery” of an online application or confirming that the application has been unsuccessful.   In the circumstances, this evidence is of little weight. The plaintiff confirmed he had not had one job interview.^[273]
221. [221]
     He said that, before the accident, he was happy with the job he had, happy with the money he was earning, and was happy to stay doing that for as long as he could.  He understandably for a (then) 20 year old person “hadn’t really thought about” what age he would retire.^[274]

Findings

Lower back

222. [222]
     In relation to the plaintiff’s lower back injury, I find that he suffered a soft tissue injury to his lower back on 3 January 2012, with no lower limb symptoms and no radicular signs or symptoms.    In this regard, I accept the evidence of Dr Reilly and Dr McPhee, both of whom saw the plaintiff at an early stage following the injury being sustained.  In addition, Dr Reilly had the benefit of seeing the plaintiff a number of times up to the end of 2012, and then again in late 2013, which in my view made her opinion, including about the ongoing symptoms and later symptoms reported to Dr Salinas of particular significance. 
223. [223]
     In so far as the plaintiff continued, up to the end of August 2012, to complain of low back pain, after a time when both Dr Reilly and Dr McPhee say they would have expected improvement for a soft tissue injury, and say they could find no reason, based on their objective clinical and radiological findings, why the plaintiff would be in pain, I consider that Dr McPhee’s analysis, of the plaintiff displaying abnormal illness behaviours, to be persuasive.
224. [224]
     In this context, the evidence of Mr Singleton of the point that the plaintiff had reached, physically, by August 2012, can be seen to be consistent with the views expressed by Dr Reilly and Dr McPhee.
225. [225]
     I also accept Dr McPhee’s evidence, that there is no scientific or reasonable explanation why a person such as the plaintiff, with a soft tissue injury, with a normal MRI, who had not previously complained of pain radiating down the back of his legs, would subsequently develop such pain, as was reported to Dr Wallace.
226. [226]
     Importantly, Dr Wallace’s report of that kind of pain, radiating into both lower limbs and posterior thighs:

     1. (a)
        is only based on the plaintiff’s self-report;
     2. (b)
        was confirmed by Dr Wallace to have been a self report of general referred pain, not radicular pain; and
     3. (c)
        is inconsistent with what was reported to Dr Reilly and Dr McPhee, both of whom had seen the plaintiff on more occasions, and at an earlier time.  It is also inconsistent with the later report of Dr Reilly, in September 2013 (that there was no radiation), and likewise the report of Dr Ballenden in January 2014.
227. [227]
     Given that one of the criteria for rating a person’s impairment as being within DRE II includes “nonverifiable radicular complaints”, and there being no other objective clinical findings which fit the criteria for DRE II, it is difficult to see on what basis Dr Wallace has expressed the opinion that the plaintiff has a DREII category impairment of the lumbar spine according to Table 15.3 of the AMA5, with a 5% whole person impairment.^[275] 
228. [228]
     Further, Dr Wallace’s clear evidence was that his impairment rating of the plaintiff was based entirely on the history of the plaintiff’s back pain radiating into the lower limbs.  Given the findings I have more broadly made about the reliability of the plaintiff’s evidence, this too diminishes the weight that I am prepared to give Dr Wallace’s opinion.
229. [229]
     Those matters, taken together with the finding I have otherwise made about the nature and duration of the plaintiff’s back injury, leads me to prefer the opinion expressed by Dr McPhee that the appropriate category is DRE I, being a 0% impairment.

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

230. [230]
     In relation to the symptoms reported to Dr Salinas in November 2007, and subsequently explored with various specialists, I accept Dr Reilly’s evidence that these were new symptoms, unrelated to the soft tissue injury to the plaintiff’s back sustained in January 2012. 
231. [231]
     In circumstances where the plaintiff was seen by multiple orthopaedic surgeons, and a spinal surgeon, in the year following the accident, and at no point mentioned any of these symptoms, I do not accept the plaintiff’s evidence that he had experienced these symptoms since the accident at work.  The plaintiff’s complaints to Dr Salinas can be seen, in context, to reveal an escalation of the subjective reporting of complaints by the plaintiff, inconsistent with the objective medical evidence.
232. [232]
     Dr Salinas is clearly a well-meaning, caring and compassionate medical practitioner.  Faced with a patient, the plaintiff, complaining to her of having been in pain for more than two years, she did everything she could to try to find some answers for him, which included referring him to multiple specialists and requesting a number of tests.  I do not criticise Dr Salinas for taking a thorough and comprehensive approach to treating her patient.  But nor can I reach the view that the steps she recommended can be causally linked to the injury the plaintiff sustained at work in January 2012.  On the contrary, on the evidence that I accept, they were not.

Left ankle

233. [233]
     I find that the plaintiff did suffer a soft tissue injury to both his ankles on 3 January 2012, with the right ankle fully resolving fairly quickly, and the left ankle taking a little longer.
234. [234]
     As early as 8 February 2012, the plaintiff was reporting to Dr Reilly that his ankles were much better.   When he saw Dr Wallace in November 2012, although he had no pain, he apparently reported to Dr Wallace a feeling of instability, or giving way, in his left ankle.  About 7 months later, in June 2013, Dr Saxby reported that the plaintiff had some minor ongoing discomfort in his left ankle (on the basis of the plaintiff’s report of intermittent pain in his left ankle, that it feels somewhat insecure but gives way very infrequently).  Dr Saxby found the left ankle to be stable to ligamentous testing.  The x-ray of the left ankle which was done at Dr Wallace’s request was normal.
235. [235]
     I prefer the opinion of Dr Saxby, that there is a zero degree of permanent impairment with respect to the plaintiff’s left ankle.  Dr Wallace’s opinion is based on speculation, that is, that an x-ray which he performed could be expected to show instability (which is a necessary pre-requisite for an impairment rating above zero in table 17-33 of the AMA 5).  However, the x-ray does not show that, and in addition, Dr Saxby, being a specialist in disorders of the foot and ankle, has examined the plaintiff and found no excessive movement. 
236. [236]
     Moreover, Dr Wallace does not explain how the percentage of impairment (4%) is calculated, as required by s 11 of schedule 8 of the Regulation.  Table 17-33 prescribes percentages of impairment, by reference to the amount of ligamentous instability, measured in mm, whether mild (2-3mm), moderate (4-6mm) or severe (more than 6mm).   A 4% impairment represents moderate instability.    In the absence of any evidence, on the stress x-ray, of such instability, not only does Dr Wallace speculate that there is nonetheless such instability, but then further speculates that it would be moderate. 
237. [237]
     Although by no means determinative of the issue, I note also that there was no indication in the surveillance footage of the plaintiff experiencing any difficulties with his left ankle.

Mental disorder

238. [238]
     At an early stage, on the basis of the evidence of Dr Rice and Mr Whittingham, I find that the plaintiff suffered from an adjustment disorder with anxiety.^[276]
239. [239]
     The evidence of Dr Rice and Mr Whittingham is that that condition had resolved by the time Mr Whittingham saw the plaintiff in July 2012.   By that time, Mr Whittingham observed no overt sign of anxiety in the plaintiff when working on the site floor, traversing the floor space, getting onto and starting the forklift, and driving the forklift under evaluation.   However, he did observe the plaintiff to be preoccupied with back jarring and onset of pain.
240. [240]
     Dr Low, on the other hand, described the plaintiff as (still) suffering from an adjustment disorder, in his report of 30 July 2012.
241. [241]
     On this issue, I prefer the opinions of Dr Rice, a psychiatrist, who saw the plaintiff on 6 occasions, and Mr Whittingham, a forensic psychologist, who spent some 3½ hours with the plaintiff in his employment setting, to that of Dr Low, a specialist in occupational medicine.  It is apparent from Dr Low’s report that the plaintiff was presenting to him, both with an escalated description of the impact of the incident, and with an escalation of his physical symptoms, as well as his anxiety symptoms, which in my view affects the weight of the opinion expressed by Dr Low.  
242. [242]
     The opinion expressed by Dr Mathew, who saw the plaintiff in November 2012, was that the plaintiff had developed PTSD, rather than anxiety disorder, following the accident.
243. [243]
     As outlined above, there are also a number of inconsistencies in what the plaintiff reported to Dr Mathew, when compared with what he had earlier told Dr Rice, and what Mr Whittingham observed. 
244. [244]
     In particular, the plaintiff’s evidence about working on the floor around forklifts, prior to his employment being terminated in September 2012, tends to undermine the opinion expressed by Dr Mathew, that the plaintiff (in November 2012) was unable to work in an environment where he is a pedestrian in proximity to forklifts.  It is apparent, from the PIRS worksheets attached to Dr Mathew’s report that this was a significant contributor to his impairment rating.    Likewise, Dr Mathew seemed to rely on the plaintiff’s report of nightmares continuing, which contrasts with him telling Dr Rice in June 2012 that he had no more troublesome nightmares.
245. [245]
     In addition, I am unpersuaded by Dr Mathew’s evidence about the basis for diagnosing the plaintiff as suffering post-traumatic stress disorder (PTSD), in circumstances where, even if the event (that is, the accident involving the forklift) could be described as one involving actual or threatened serious injury, there was certainly no evidence of the plaintiff’s response to the event involving intense fear, helplessness or horror (the plaintiff had no memory of the event, after the forklift reversed into him).  The first of the diagnostic criteria for PTSD is in fact exposure to a particular kind of traumatic event, which has these two elements.^[277]  That is, a traumatic event of a particular kind is necessary for a diagnosis of PTSD at a medical level.^[278]  PTSD can only be diagnosed as an illness or disease in terms of a traumatic event and, where that diagnosis is in question, it is a matter of fact for the tribunal of fact (in this case, this court) to determine whether the alleged event was of that character.^[279]
246. [246]
     In cross-examination, Dr Mathew acknowledged that he had effectively made an assumption as to the plaintiff having a fear of death from the incident, “based [on] the man being kind of crushed by a forklift and being quite badly injured”.^[280]  But as was put to him by the defendant’s counsel, there was no crushing of the plaintiff, he was hit by a forklift travelling at, it seems, a low speed, fell to the ground, and has no recollection of the event.  Further to this, as noted above, it can be inferred from the fact that the MRI acutely post injury was normal that the impact on the plaintiff was not significant.
247. [247]
     It was apparent there was no basis for Dr Mathew to say the plaintiff’s reaction to the event was one of intense fear, helplessness or horror.   Dr Mathew maintained his own diagnosis of PTSD, but, fairly, acknowledged that, in the absence of this criterion, there was a “very valid argument” that the diagnosis of adjustment disorder was appropriate.^[281]
248. [248]
     Dr Mathew said whether he was diagnosed as having PTSD, or an adjustment disorder, the treatment would be the same.  He also said the assessment of impairment would also be the same.^[282]
249. [249]
     As to the latter, as a general proposition that may well be correct; but as I have already noted, the difficulty I have with Dr Mathew’s PIRS rating (regardless of the diagnosis) is the inconsistency in the evidence, as between what was reported to Dr Rice and observed by Dr Whittingham, and for that matter Mr Singleton; as well as the plaintiff’s own evidence about his ability to work in proximity to forklifts; and what was reported to and found by Dr Mathew.
250. [250]
     On balance, I do not accept the evidence of Dr Mathew in terms of his diagnosis of PTSD, and prefer the evidence of Dr Rice, confirmed by Mr Whittingham, of a diagnosis of adjustment disorder with anxiety.    Because I do not accept Dr Mathew’s diagnosis, and having regard to the factual matters that in my view undermine his assessment of a PIRS of 5%, I do not accept that as an appropriate rating
251. [251]
     By the end of August 2012 the plaintiff was clearly still unwilling to drive a forklift, on the basis that, he said, it caused him pain to do so.   Accepting, as I do, the evidence of Dr McPhee and Dr Reilly that there was no objective clinical or radiological reason to explain that, by reference to his back injury, the evidence seems to suggest four possible explanations for that: 

     1. (a)
        first, that the plaintiff is and was being deliberately dishonest;
     2. (b)
        second, that his complaints were not deliberately dishonest, but operating at a subconscious level, although without any operative mental disorder by that stage (supported by Dr McPhee’s analysis of abnormal illness behaviour);
     3. (c)
        third, that he had developed a pain disorder (Mr Whittingham); or
     4. (d)
        fourth, that his adjustment disorder was continuing (Dr Low).
252. [252]
     As I have already said, I do not accept Dr Low’s evidence, where it is inconsistent with that of Dr Rice and Mr Whittingham, as to the persistence of adjustment disorder. 
253. [253]
     As to pain disorder, that is Mr Whittingham’s view, but Dr Rice disagrees.^[283]  Even if that was the appropriate diagnosis, as mentioned above, it is not pleaded by the plaintiff in his statement of claim, and was expressly disavowed by his counsel at the trial.
254. [254]
     On balance, it seems to me that the more probable explanation for the plaintiff’s behaviour in late August / early September 2012 is either the first or the second above.  I am reluctant to expressly find that he is and was being deliberately dishonest; but in any event, my careful analysis of the evidence leads me to the view that I am unable to accept much of the plaintiff’s evidence.   I find that by September 2012 the plaintiff no longer suffered from a mental disorder which was causally related to the workplace injury he sustained on 3 January 2012. 
255. [255]
     The plaintiff has not discharged the onus of proving, on the balance of probabilities, that his inability / refusal to drive a forklift in September 2012 is due to any of the injuries, as pleaded, and on the basis of the findings I have made about them, which were caused by his workplace accident on 3 January 2012.
256. [256]
     I turn now to the assessment of damages, having regard to the findings I have made.

Assessment of Damages

General damages

257. [257]
     Sections 306O and 306P of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (Act)^[284] govern the calculation of general damages.  In the first instance, that involves assessing the appropriate “injury scale value” (ISV) under the rules provided under the Regulation.^[285]

258. [258]
     The rules for assessing ISV’s are set out, relevantly for present purposes, in s 112D and schedules 8 and 9 of the CLR.  Schedule 8 sets out a number of matters the court is to have regard to in the application of schedule 9 (which sets out the range of ISVs for various injuries).

259. [259]
     As explained in s 2 of schedule 8, in assessing the ISV for an injury, it is necessary to consider the range of injury scale values stated in schedule 9 for the particular injury concerned, noting that the range of ISVs reflects the level of adverse impact of the injury on the injured worker.

260. [260]
     Relevantly, ss 3 and 4 of schedule 8 deals with the approach to assessing the ISV for multiple injuries.   As McMeekin J explained in Allwood v Wilson [2011] QSC 180 at [20] and [21], in relation to the equivalent provisions in the Civil Liability Regulations 2003:

“This case concerns multiple injuries. In such a case it is necessary to determine the dominant injury as it is defined, have regard to the range of ISVs applicable to that injury, determine where in the range of ISVs provided for that injury it should fall, and determine whether the maximum ISV in that range (“the maximum dominant ISV”) adequately reflects the adverse impact of all the injuries. If the maximum dominant ISV is not sufficient then the ISV may be higher but not more than 100 and only rarely more than 25% above the maximum dominant ISV selected. In arriving at an appropriate ISV the court needs to bear in mind that the effects of multiple injuries commonly overlap.

Whilst the regulations indicate that the purpose of the elaborate scheme set out there is to promote consistency in awards, sight must not be lost of the overriding purpose of the ISVs prescribed — to reflect the level of adverse impact of the injury on the injured person.” ^[286]

261. [261]
     As defined in schedule 13 of the Regulation, “dominant injury” means either the injury of the multiple injuries having the highest range, or if the highest range for 2 or more injuries is the same, the injury selected as the dominant injury by the court.  The “highest range” means the range of ISVs having the highest maximum ISV.

262. [262]
     Section 8(2) of schedule 8 provides that in assessing an ISV, the court must have regard to the provisions set out in schedule 9 (such as examples of injury, examples of factors affecting ISV assessment and comments about appropriate level of ISV), to the extent they are relevant in a particular case.  But s 9 provides that the court may have regard to other relevant matters, including the range for, and other provisions of schedule 9 in relation to an injury other than the dominant injury.

263. [263]
     Under s 10 of schedule 8, the extent of whole person impairment is an important consideration, but not the only consideration affecting the assessment of an ISV.  Sections 11 and 12 contain provisions dealing with the requirements of medical reports stating whole person impairment percentages, and the greater weight to be given to such an assessment provided under AMA5, than to one not based on that criteria.

264. [264]
     In so far as the back injury is concerned, the plaintiff contended that item 92 (moderate lumbar spine injury – soft tissue injury) was appropriate.  The defendant contended that item 93 (minor lumbar spine injury) was appropriate.   Having regard to the finding I have made above, as well as to the comment in relation to item 92 in schedule 9, that “[t]he injury will cause moderate permanent impairment, for which there is objective evidence, of the … lumbar spine”, and there being no objective evidence of that in the plaintiff’s case, in my view item 93 is the appropriate one.   I am confirmed in that view by the examples given for item 93, which are consistent with the plaintiff’s situation here.  The ISV range for item 93 is 0 to 4.  

265. [265]
     In so far as the ankle injury is concerned, the plaintiff contended the relevant categorisation under schedule 9 was item 143 (minor ankle injury), which has an ISV range of 0 to 5.  I agree that is appropriate.  

266. [266]
     In so far as the “psychiatric injury” is concerned, the plaintiff contended that item 12 (moderate mental disorder) was appropriate.  An example of the injury for item 12 is a mental disorder with a PIRS rating between 4% and 10%.  The plaintiff relies upon Dr Mathew’s PIRS rating of 5% in making this submission.  However, as I have said, I consider that the reliability of this is undermined by the actual evidence of the plaintiff’s ability to work in proximity to forklifts.  On the basis of my findings above, I am not satisfied the plaintiff’s mental disorder as a result of the workplace accident falls within item 12, but would consider that it falls within item 13 (minor mental disorder), which has an ISV range of 0 to 1.

267. [267]
     On that analysis, and having regard to the definition of “dominant injury” in schedule 13, the “dominant injury” is the ankle injury (because it has the highest range of ISV, having 5 as its maximum). 

268. [268]
     Given that I would notionally have assigned an ISV of 4 for the lumbar spine injury on its own, to reflect the level of adverse impact of all 3 injuries on the plaintiff, I propose to assess the plaintiff as having an ISV of 5 (that is the maximum dominant ISV), raised by 20% to 6 (see s 3(2) and 4 of schedule 8 of the Regulation).  

269. [269]
     Having regard to s 112E and schedule 12 (item 2) of the Regulations, the amount of general damages to be awarded is $7,500.00.

Special damages - past

270. [270]
     In terms of the claim for past special damages, the amount of the refund due to the defendant is agreed, in the sum of $51,378.65.^[287]
271. [271]
     The claimed refund to Medicare was controversial, because of the defendant’s contention that the expenses incurred as a result of Dr Salinas referring the plaintiff to a number of specialists after November 2013 are not causally related to the workplace accident on 3 January 2012.  I have found that to be the case.  Accordingly, those expenses are not recoverable as damages against the defendant.
272. [272]
     The defendant submitted that the Medicare refund should be limited to the amount of $390.75 claimed in the 5 March 2014 statement of loss and damage.^[288]  Having regard to the actual Medicare “notice of past benefits” document^[289] that seems to be correct.^[290]
273. [273]
     Out of pocket treatment expenses of $505.50 are claimed.  These relate to amounts the plaintiff is said to have paid to Dr Reilly, Dr Hayes, Dr Meyer and Dr Bradfield.^[291]   I am prepared to include the amounts paid to Dr Reilly on 4 September and 19 December 2013 (which comes to $111.90) (on the basis that she was his treating orthopaedic surgeon at an earlier time and it may be said to be reasonable for Dr Salinas, initially at least, to have referred the plaintiff back to her), but consistent with my finding above, the amounts paid to Dr Hayes, Dr Meyer and Dr Bradfield are not recoverable.  
274. [274]
     Out of pocket pharmaceutical expenses of $491.06 are claimed.^[292]  The amount claimed in March 2014 was $265.34.  It appears from exhibit 4 that it is not simply that expenses incurred since March 2014 have been added, but additional expenses incurred pre March 2014 as well.  Reflecting my findings above, I propose to include the sum of $448.96 for past pharmaceutical expenses (having removed expenses post March 2014).
275. [275]
     Travel expenses of $1,743.90 are claimed.^[293]  The defendant notes that no evidence was lead about travel expenses.  That is correct, but I can infer that the plaintiff had to travel to the doctors that I have heard evidence about and from, and which I accept were for the purposes of his work-related injury.  The plaintiff submits an amount of $0.75 per kilometre is appropriate, and refers to the decision of Daubney J in Land v Dhaliwal [2012] QSC 360.  In the absence of any submission to the contrary by the defendant, I will adopt that amount.  However, when I look at the schedule of travel expenses which forms part of the statement of loss and damage prepared in April 2015,^[294] there are a number of amounts that I consider should be removed either because they relate to attendances on doctors I have found not to be for matters causally related to the work place injury (such as Dr Hayes, Dr Salinas and Dr Meyer), or to attendances on doctors / health practitioners I heard no evidence about. 
276. [276]
     One of the practitioners referred to is a Mrs M Abella, who I understand is the same person as Ms Madonna Steinhort, a psychologist.   It seems the plaintiff was referred by Dr Salenis to Ms Steinhort in late 2013.  The plaintiff said he “was seeing Ms Steinhort just to work through the rest of the anxiety I had left and to help me work through everything that’s going on with all of the past two years”.  When asked what he meant by all of the past two years, he said “I mean, like, just the – the claim and, yeah”.^[295]
277. [277]
     Dr Salenis’ notes of 23 April 2014 refer to the plaintiff doing “some jobs for Madonna for workshop”.^[296]  This is Madonna Steinhort, the psychologist.  The plaintiff said he was attending a workshop she was conducting at Bribie Island (one day a week, for 6 weeks), and also helping her with some administrative tasks while he was there (processing attendants’ Medicare cards and photocopying).^[297]
278. [278]
     There was no evidence given by Dr Salenis at the trial about why she referred the plaintiff to Ms Steinhort.^[298]  Dr Salenis’ notes refer to receiving a report from Ms Steinhort’s Bribie Island practice on 11 January 2014, but it was not in evidence (and seems not to have been disclosed).^[299] 
279. [279]
     Given the amount of medical evidence that was tendered in this trial, and the number of doctors who also have given evidence, I am not prepared to draw inferences about what the purpose of other visits to other health practitioners was about, in the absence of evidence.  This applies to Ms Steinhort as well.  
280. [280]
     The amount allowed for travel expenses will therefore be $117.15.^[300]
281. [281]
     Interest will be allowed on the out of pocket amount of these expenses ($678.01), at the rate of 3.25%, for 3.5 years,^[301] which comes to $77.12.

Past economic loss

282. [282]
     The medical evidence, which I accept, is to the effect that:

     1. (a)
        the plaintiff’s back injury would not impact on his ability to work, including as a forklift driver:  Dr McPhee, Dr Ballenden and Dr Reilly (noting the comments above about her 18 September 2012 comment regarding inability to drive forklifts); and
     2. (b)
        the plaintiff’s ankle injury would not impact on his ability to work, including as a forklift driver:  Dr Saxby.
283. [283]
     In so far as the plaintiff’s mental disorder is concerned, on the basis of my finding above, that consistent with Dr Rice and Mr Wittingham’s evidence, the plaintiff’s adjustment disorder, which can be said to have been caused by the workplace injury, was resolved by July 2012, there is no basis to find that his negligence-caused mental disorder impeded his ability to work, including as a forklift driver, after September 2012.
284. [284]
     Even Dr Mathew’s evidence was that although the plaintiff could not work in an environment where he is a pedestrian in proximity to forklifts, he is otherwise fit for full time work from a psychiatric perspective. As discussed, the former opinion is undermined by the fact that the plaintiff was able to work in proximity to forklifts as at September 2012.
285. [285]
     The only evidence that the plaintiff’s back injury had, or will have, an impact on the plaintiff’s ability to work, including as a forklift driver, is the plaintiff’s own evidence.  For the reasons which I have outlined in detail above, I am not prepared to accept the plaintiff’s evidence in that regard, particularly where it is inconsistent with the large body of medical evidence before me.
286. [286]
     On the question whether the plaintiff is suffering pain, which prevents him from driving a forklift, counsel for the plaintiff submitted that “there is not one medical opinion that questions [the plaintiff] suffering back pain or, specifically, that he suffered from severe back pain when he tried to drive a forklift”.  In that regard, counsel referred to Koven v Hail Creek Coal Pty Ltd [2011] QSC 051 (McMeekin J), in particular at [34] where McMeekin J said:

“There is a qualification that needs to be recognised with orthopaedic opinions of the type relied on by a defendant.  The men proffering the opinions are themselves not truck drivers or bus drivers.  The day to day reality that the work entails may not be quite as they envisage.  And where it is acknowledged that pain is the restriction and that pain can be triggered by a variety of movements or forces that might impact on the joint, or indeed simply changes in the weather, or for no discernible reason, I would need cogent evidence to persuade me that a doctor has the greater capacity to judge what a man can do in such employment than the man himself – where the person in question is accepted as an honest reporter, which I certainly do here.”^[302]

287. [287]
     There are two obvious distinguishing features between this case, and the Koven case:

     1. (a)
        first, as indicated in the last sentence of [34], it was said of Mr Koven that “[t]here was no suggestion that the plaintiff overplayed his injuries and [his Honour’s] impression generally was that he was quite stoical”.  Justice McMeekin later said “Mr Koven seemed patently honest” (at [83]). In contrast, here, in my view there is undoubtedly overstatement of the plaintiff’s symptoms by him, and whether that is conscious or subconscious, it is inconsistent with the objective evidence.
     2. (b)
        second, in Koven, the expert evidence, of two orthopaedic surgeons, accepted that ongoing pain, which was explicable on the basis of the objective medical evidence, would cause Mr Coven some restrictions in his future employability (see at [11]-[15]).  In that context, the issue being dealt with by McMeekin J at [34] was whether to accept the orthopaedic surgeon’s evidence that, although Mr Koven could not return to the heavier manual work he had been doing in the mines, he could work full time in other jobs, including as a tilt truck driver, or Mr Koven’s evidence that he could not work full time in that job.  In contrast, here, the medical practitioners whose evidence I have accepted ssay the continuing, subjective, pain reported by the plaintiff is not explicable on the objective medical evidence; and none of them express the opinion that the plaintiff should have any restrictions.
288. [288]
     So although it is true to say that the medical practitioners cannot categorically say the plaintiff does not suffer pain, that is because they all accept that pain is a subjective thing.
289. [289]
     Counsel for the plaintiff further argued that there was a breach of the rule in Browne v Dunn in that it was not expressly put to the plaintiff that he was lying about experiencing an aggravation in his back condition and the onset of severe pain after being on the forklift for 2 or 3 minutes, and that his evidence must therefore be accepted about that.
290. [290]
     I do not accept that submission.
291. [291]
     In Thomas v Van den Yssel (1976) 14 SASR 205 at 207 Bray CJ said, after referring to the general principles from Browne v Dunn:

“But these principles cannot, in my view, be applied without qualification to a challenge to the witness’s credit generally, particularly the credit of a plaintiff in an action for damages for personal injuries in relation to his evidence about his symptoms and incapacities.  Damages are always in issue.  Such a plaintiff knows that the defendant will contend that his injuries do not deserve the sum which he himself has placed on them.  And in many other cases the witness must know that the other side will contend that he is not telling the truth, and even in some cases that he is deliberately not telling the truth.  I cannot assent to the proposition that counsel cannot argue or the court find that a witness is deliberately giving false evidence unless the witness is asked some such question as, ‘I put it to you that your evidence is false’, or ‘I suggest that that is a deliberate lie’ or the like.  Indeed a successful objection might be taken to such questions as needlessly offensive…”^[303]

292. [292]
     As McClure JA said in Lazarevic v Western Australia [2007] WASCA 156 at [20], it is unnecessary to put such questions because it permits of only one response, a bare denial.
293. [293]
     In any event, the defendant’s case was made plain, on the pleadings, and in medical reports exchanged well before trial, as well as by the extensive cross-examination of the plaintiff.  There can be no question that the plaintiff had fair notice of the case against him.^[304] 
294. [294]
     I am not satisfied, on the evidence, that the plaintiff’s failure to work, since September 2012, is causally related to the injury he suffered at work on 3 January 2012.  By the time his employment was terminated in September 2012, he was able to work full hours, albeit not driving a forklift.  So even apart from anything else, I do not accept the submission that he has suffered a loss, to the date of judgment, of the whole of his income. 
295. [295]
     But more to the point, I am not satisfied that he could not have continued to do the work he was previously doing, that is, driving a forklift. 

Future economic loss

296. [296]
     It follows from my finding above, that I am not satisfied that the plaintiff’s future earning capacity has in fact been diminished by reason of the workplace injuries he sustained on 3 January 2012.^[305]
297. [297]
     Accordingly, I do not allow any amount for future economic loss.

Future special damages

298. [298]
     It further follows from the findings I have made above, that no amount can be awarded for future special damages.

Summary of damages to be awarded

299. [299]
     In summary, for the reasons set out above, damages are assessed as follows:

300. [300]
     There will be judgment for the plaintiff in an amount consistent with my reasons above (and reflecting an amount net of the refund to the defendant).  However, to enable the parties to consider the calculations above, I will direct that the parties file a form of order within 7 days.  Likewise, I will hear the parties as to costs, and to that end propose to direct that any submissions in respect of costs, or alternatively a proposed consent order if the parties are agreed, be filed within 7 days.