Brooker v Adecco Australia & Adecco Centacom Pty Ltd [2002] ACTSC 71 (26 July 2002)

Last Updated: 23 August 2002

Michael Brooker v Adecco Australia & Adecco Centacom P/L & Australian Capital Territory [2002] ACTSC 71 (26 July 2002)

CATCHWORDS

DAMAGES - Assessment - personal injury - employment accident - Soft tissue injuries - no issue of principle

Ramsay v Watson (1960) 108 CLR 463

State Rail Authority (NSW) v Earthline Constructions (1999) ALJR 306 at 329

Young, P.W., Scientific Fact Finding (1999) 73 ALJ 233

No. SC 146 of 2000

Coram: Master T. Connolly

Supreme Court of the ACT

Date: 26 July 2002

IN THE SUPREME COURT OF THE )

) No. SC 146 of 2000

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: Michael Brooker

Plaintiff

AND: Adecco Australia/Adecco Centacom Pty Limited

First Defendant

AND: Australian Capital Territory

Second Defendant

ORDER

Coram: Master T. Connolly

Date: 26 July 2002

Place: Canberra

THE COURT ORDERS THAT:

1. Judgment for the plaintiff against both defendants in the sum of $129,578.18

2. Parties to be heard on costs

1. This is a claim for damages for personal injuries arising from an employment related accident which occurred in May 1998. The plaintiff was employed as a landscape gardener working towards the preparation of Commonwealth Park in Canberra for the Floriade flower festival. He was originally employed in February 1997 by an agency of the Australian Capital Territory government, but this changed with the contracting out of services to Adecco Australia Limited. He has brought this action against both defendants, and counsel for the defendants advised me that no issue of attribution would arise, and a judgment for the plaintiff should be against both defendants. Liability was not in issue, and the matter proceeded by way of an assessment of damages only.

2. Mr Brooker was born in 1969, and had difficulties with his schooling. Mr Sutton, a psychologist who has provided treatment and reports in his case, has said that he has reading levels to the equivalent of year six only, which is barely functional for everyday purposes. He has always had manual employment, and for nearly 12 years worked in a tyre retreading factory, rising to be foreman. He left this job shortly before the firm went out of business, and obtained the gardening employment.

3. The plaintiff's duties were to drive a small dump truck delivering soil and compost from a central tipping site to the various prepared flower beds around Commonwealth Park. The vehicle was steered from the rear wheels, and has a capacity of about 1.5 cubic metres, and is able to move around on the pedestrian paths throughout the park area. The operator sits at the rear of the vehicle, and the plaintiff's case is that the seat was faulty so that he was subjected to excessive jolting. He says that on 15 May 1998 he was in discomfort as he was operating the vehicle, and he reported to his foreman that he had hurt his back. He said his back was tight and aching. His supervisor instructed him to continue to operate the vehicle, but to drive slowly and carefully. After three days the plaintiff says that he told his supervisor that his back was so bad that he could no longer drive, and he was told to park the vehicle and spend the rest of the day watering bulbs. This was a Thursday, and he was not rostered on to work on the Friday.

4. The plaintiff says that he thought that he would recover over the weekend, but that his back was still hurting when he reported to work on the Monday. He was not able to obtain a doctors appointment until the next day, and spent the Monday doing light duties about the depot. He attended his general practitioner on Tuesday, and has not returned to work since. There is some discrepancy in the timing of these events, as the doctors reports refer to an initial consultation on 19 May 1998, but little turns on this.

5. Dr Buczynski his general practitioner, says that he reported with gradual development of low back pain. He said

"according to the patient he did not have any significant back problems before this. However, about three months prior to the above injuries he developed some back ache following weeding. According to the patient, his back settled then in a few days."

6. Dr Buczynski noted tenderness over the low back, straight leg raising to 60 degrees and flexion of the lumbosacral spine limited to 45 degrees by pain. He diagnosed soft tissue sprain of the lumbosacral spine and treated this with rest by issuing a medical certificate, and anti-inflammatories and analgesia (Panadine Forte).

7. Mr Brooker has never returned to work, and continues to complain of high levels of pain and disability. In his report of September 1999, some 16 months after the incident, Dr Buczynski said that the plaintiff continues to suffer from severe low back pain, neck pain and headaches, and has "very restricted" range of movements in his lumbo sacral spine.

8. During this period Mr Brooker had undergone extensive investigations by Dr Spelewinde and Dr Andrews. Scans by x-ray, MRI and CT have failed to show any injury. Dr Andrews investigated potential facet joint problems at C3-4 and performed blocks, but the result was unsatisfactory. The best diagnosis remains soft tissue injury.

9. I note that in his report of 4 December 2000 Dr Andrews states that although he did perform facet joint blocks at C3/4

"It would seem that the neck was not injured at the time of the back injury and that it was a subsequent development at the CIT which you have explained in your letter to me."

He noted that Mr Brooker had expressed the view that his neck pain was linked to his back injury, but Dr Andrews remained of the view that

"this would not have been caused by the problems in his lower lumbar spine."

10. Dr Speldewinde in a report of December 2000 said that at the time of his treatment of Mr Brooker in June 1999 he was not aware of any complaint of neck pain, but he says that a person with a chronic back ache is more likely to develop a chronic neck pain condition.

11. Dr Speldewinde in a report of January 2002 said that the plaintiff continues to complain of pain and restriction of movement from his back. He said

"His spinal pain, particularly in the lower back area, is aggravated by bending, arm elevation, domestic activities and prolonged sitting and standing. However, he has learnt to pace and adjust his activities to complete necessary tasks particularly around the home. Headaches occur less frequently and severely than previously but still at a fortnightly rate......There was global restriction of spinal movements by about approximately 50-70 percent and diffuse lumbar and upper thoracic tenderness and allodynia."

12. His most recent report from his general practitioner states that he suffers from chronic lumbosacral back pain, depression, and cervical spine pain and headaches. There remains no objective cause for these complaints verifiable from any scans. Dr Buczynski says that his treatment continues to be physiotherapy, massage, anti-inflammatories and analgesia, and that

"the above treatment allowed him to maintain his current functioning which unfortunately is still significantly restricted."

Mr Brooker moved in a very slow and guarded manner in the courtroom.

13. He has also been examined by Mr Sutton, clinical psychologist. His report, as is frequently the case in matters in this court, purported to say that tests showed that the plaintiff was not exaggerating or malingering. In soft tissue injury claims, where there is no objective evidence of injury, all of the doctors and the court are dependant on the plaintiff's assertion of pain and restriction of movement. I do not understand that the science of psychology has advanced to the point where a clinical psychologist, who is also dependant on the answers given, can give an expert opinion that a person is not exaggerating or malingering. That is a question for the court, on all of the evidence.

14. The defendant's medicine comprised reports from Dr Shaeffer, a consultant neurosurgeon, and Dr Stevenson, a consultant physician. Dr Schaeffer saw him on 26 October 2000. Dr Schaeffer says that

"Mr Brooker said he is able to bend his back only partially and when attempting to bend he performs this movement in a cautious manner with restriction."

He took a history that the plaintiff "is concerned that he is unable to undertake any activities with his children due to the painful consequences". Dr Schaeffer concluded that

"The clinical examination does not suggest the existence of any significant back disability. In addition to the negative findings, there is a degree of inconsistency with lumbar spinal mobility. The radiological findings were also normal. Further more, I was unable to find evidence of Mr Brooker suffering a true back injury. He attributed his back symptoms to being exposed to uncomfortable seating when driving a vehicle approximately two and a half years ago, since when his symptoms have become more diffuse to involve his shoulder blades and neck. There is no way in which any spinal abnormality may have been incurred as a consequence of the uncomfortable seating. If Mr Brooker experienced any back symptoms at the time, they would only have been of a soft tissue, muscular type and would be expected to have resolved within a few days."

15. Dr Stevenson examined the plaintiff in August 2001. He again took a history of widespread pain and restriction of movement. He said that on formal examination the plaintiff had modest restrictions of cervical movement, but when he was not being examined there was fairly free cervical movement. He said that spinal movement was slow but ultimately fairly close to normal, noting that he was able to bend to bring the tips of his fingers two-thirds the way down his shins. He noted that the radiological examinations were `pristine'.

16. Dr Stevenson concluded that

"It is obviously implausible that Mr Brooker sustained any severe or substantial injury to his spine in the manner described...It is possible that he might have had some transient lumbar discomfort so precipitated. Against that it must be appreciated that lumbar pain of obscure origin is an intermittent, remittent predicament of everyday life. It is pathologically and clinically implausible that he sustained substantial injury...Mr Brooker appears to have formed the view that he has suffered a chronic, disabling and permanent back injury, which makes him for the rest of his life incapable of doing the sort of work he has normally done......He has suffered no injury to his spine. He is capable of doing his normal work and should be encouraged to do so. His complaints of pain reflect the adoption of the sick role and depression."

17. Dr Stevenson said that he tended to accept Mr Suttons view that the plaintiff was not malingering or exaggerating. Again, this is a matter for the court on all of the evidence, and in this case there was extensive video material shown which, unfortunately, is quite inconsistent with much of the plaintiff's evidence and the histories given to all of the doctors.

18. The video material comprised film showing the plaintiff reporting either to the workers compensation insurer's office or to the doctors. In this film he walks slowly and cautiously, with obvious limitations of movement as he gets into and out of his car. This material is quite consistent with his claims, and with his presentation in the witness box.

19. There is also material showing the plaintiff attending at junior rugby league coaching for his sons team. In his evidence he said that he took his son, and had helped out on occasion. The film, which is an exhibit, showed much more than this. On several occasions he seemed to be the only adult involved. He took the boys through stretching exercises that involved him doing three point bends, bending freely and easily at the waist and touching the ground with his fingers at a point in front of his toes, at about the level of his toes, and at a point at about the levels of his heels. These movements were done repeatedly and freely, and were in my view quite incompatible with his claims of ongoing restriction of the lumbar spine.

20. He also took the boys through drills involving running forward and back in a line of players, touching the ground at the most forward point. He took the boys through drills running and weaving. He took them through drills involving side stepping jumps. There were several training sessions each running over an hour, and at no point did I see any sign of disability. The contrast between this behaviour and the film of the plaintiff attending for medical examinations (which included the medico-legal examination by Dr Stevenson) was dramatic.

21. In cross examination and before the video material was shown Mr Brooker had said that he was restricted in activities he could do with his children due to back pain. He said that he could take his son to training and if the coach is late or does not show up "I'll just stand there with the boys and send them for a run, like to the post and warm them up." He was specifically asked "What, you just stand and watch them do you" and he answered yes. This is quite inconsistent with the video material. On some evenings he is the sole coach, on others there is another person coaching, but he still takes an active role. On all occasions there were other fathers present and observable who did restrict themselves to just standing around and watching. I do not think that much turns on whether the plaintiff was the coach or a helper, the fact remains that there is extensive video material of him performing physical activities well beyond the range of movement that he has said he can perform, and very inconsistent with his cautious limping movement in the courtroom. At the start of cross-examination (Transcript p 23-24) he agreed that he limped noticeably as he came into the witness box, and said this was due to his back.

22. It was put to Mr Brooker that the video material demonstrated him bending his back fully and without restriction, and he agreed with this (Transcript page 64). He agreed that he had told the court and doctors that he could bend his back only partially and with restriction, and that this was the truth. (Transcript page 64) He was not able to explain why this was so (Transcript page 65)

23. Mrs Brooker gave evidence which was generally supportive of her husband. She said that she knew that he took their son to training, but was not sure what he did there. She said she would be surprised if he was seen bending over and doing drills with the boys. She said in cross-examination that she knew that he had been shown on video being active before she came in to give her evidence, and that she had come to court to do her best for him. Although she has given evidence supportive of his claim of high levels of disability, her evidence is equally inconsistent with the video material.

24. The plaintiff was also filmed extensively at an outing with a group of friends to the Summernats car festival. The exposed film lasted several hours, and extended from about 11 am to 5 pm. The plaintiff was seen walking, standing and sitting with his friends, with no sign at all of any disability. He claimed that sitting still for 15 minutes was a problem, and demonstrated this in the witness box, but this behaviour was absent as he was sitting having lunch or drinks with his friends at the car festival. He agreed that the film showed him sitting at a bench with no lumbar support for over 25 minutes with no sign of discomfort, and then standing up in a fluid normal motion. He denied that he had exaggerated his problems with sitting in his earlier evidence.

25. He was also filmed working on his car, bending over to 90 degrees freely, and squatting and raising himself fluidly. He agreed that this flim was remarkably different from film of five days previously where he was seen limping into his doctor's rooms. His explanation was that it would have "something to do with the medication." I find this explanation quite unsatisfactory.

26. There was also video film which showed the plaintiff lifting a toolbox from the rear of a utility with no difficulty. It was put to him that this was a heavy toolbox, but he said that it was a new empty box he was picking up for a friend who lived on the other side of Canberra. The friend was later called and confirmed this, and I am satisfied that it was an empty box of no great weight. I do not regard this video incident as being of any significance.

27. The video material, taken as a whole, seems to me to be quite inconsistent with the plaintiff's continual claims that he suffers from significant restrictions of mobility in his lumbar spine. This is a case where there is no objective signs of damage to the spine, and all doctors have been dependant upon the plaintiffs complaints and history. All doctors are agreed that this is a case of soft tissue injury with no verifiable damage to the spine, and in these cases the validity of an opinion is necessarily dependant upon the truth of the plaintiff's complaints. The video material, in particular the extensive material at the junior rugby league training sessions, is in my view quite incompatible with the plaintiffs complaints of restriction of mobility. The doctors who have reported in his case have done so on the basis of restrictions of movement that I find to be untrue. Dr Speldewinde in January 2002 reported on the basis of "global restriction of spinal movements by about approximately 50-70%". His general practitioner says that he still has "significant" restrictions of movement. This is quite incompatible with the video material, where the plaintiff acknowledged he was seen repeatedly to move fully and freely. Where an experts' opinion is based on a history of complaints which is not made out on the evidence at trial, the opinions are to that extent undermined (Ramsay v Watson (1960) 108 CLR 463). The plaintiff's medical reports are, in my view, quite incompatible with what he was seen to do on video, and what he acknowledged he was seen to do.

28. Mr Sutton's psychological report purported to say that tests showed that Mr Brooker was neither exaggerating nor malingering. As far as I am aware, no court in Australia has accepted that there is a scientific method to telling whether a person is being truthful. (Young, P.W., Scientific Fact Finding (1999) 73 ALJ 233). Reputable studies have shown that judges, police officers or psychiatrists are no more likely than the general population to be able to detect whether a person is being truthful (P. Ekman and M O'Sullivan, Who Can Catch a Liar, American Psychologist, September 1991, p 913). I accept that Mr Sutton has asked a series of questions in order to perform the tests that he says shows that the plaintiff is not exaggerating, but like the other experts, he is of course dependent upon those answers. An assertion by a psychologist that a person is not exaggerating is, it seems to me, beyond the proper scope of expertise. As Kirby J noted in State Rail Authority (NSW) v Earthline Constructions (1999) ALJR 306 at 329

"In the future, technology may be developed which will assist courts in the conclusive determination of issues of witness credibility where these are disputed. In the United States of America, polygraphs are already in use in some jurisdictions. In Australia, they have not been treated as sufficiently reliable for judicial use. Our courts must therefore continue to struggle with the aid of human estimation".

29. Where a claim for damages for personal injuries is dependent entirely, as this soft tissue injuries claim is, on the truthfulness of a plaintiff's complaints of pain, video surveillance material showing a plaintiff acting in a manner contrary to what they have said they are able to do can be of significance. This, in my view, is such a case.

30. On all of the evidence I accept that the plaintiff sustained a degree of soft tissue injury and muscle strain to his lumbar spine as a result of the loose seat on the dumper vehicle. I am satisfied that this was transient in nature. It seems to me that an appropriate point from which I can be satisfied that the plaintiff's back condition was limited to low level nuisance value symptoms is October 1999. There is video material of the plaintiff attending a medico legal examination on 15 October 1999. He walked with obvious limitation, and got into his car with difficulty. On 20 October 1999 he was filmed working on his car with no apparent disability. He agreed that it showed a "fit and capable man working on his car" and moving with no difficulty (Transcript p 38). I am not satisfied that beyond this time the plaintiff's soft tissue injury to his lumbar spine caused significant ongoing disability.

31. I am not satisfied that his complaints of cervical pain are related to his back sprain at work. I prefer the evidence of Dr Andrews, who was the treating specialist in relation to the neck complaint, who has clearly stated that it is not work related.

32. A finding of soft tissue injury to the lumbar spine sounds only relatively modestly in general damages. I accept that the plaintiff was disabled to some significance for a period of some eighteen months. I do not accept his claimed levels of disability beyond this point as it is quite inconsistent with the video material, although when he has been filmed attending medical examinations a high level of disability is again evident. I do not accept that this is genuine as it is incompatible with his activities on the football training field.

33. Taking all of this into account I would award general damages in the order of $25,000, with the bulk of this, in the sum of $20,000 for the past generating interest of $1681, for a total award of $26,681.

34. The plaintiff claims that he has been unable to work since the accident, and remains unfit to work. He claims for past economic loss on the basis of $420 per week initially, and increasing in line with adjustments to salary for gardeners, for a total economic loss claim to trial of $121,700. The future loss claim is on the basis of total incapacity for work, and is a claim on an ongoing basis of $650 per week.

35. This is not established by the plaintiffs' medical experts, even taken apart from the impact of the video material. Dr Andrews in his latest report of January 2002 said

"I suspect that the level of disability is quite mild and once he completes his studies and then hopefully doesn't have to do manual work, he should not have any significant restrictions in employment."

36. Dr Speldewinde in a report of October 2000 said

"When last seen in August 1999, he was not fit to return to his pre injury occupation as a gardener on a full time or full normal duty capacity, but it would be reasonable to look at all appropriate work options of a light manual handling capacity."

In cross-examination the plaintiff said that he had not looked for any alternative work. He agreed that he had been in receipt of workers compensation payments, presently in the sum of $325 a week, since the accident, and that his net earnings were in the order of $380 a week when he was working as a gardener.

37. The defendants medical experts both expressed the view that he is capable of performing his normal duties.

38. Counsel for the defendants accepted that the plaintiff should be entitled to an award for past economic loss up to October 1999. This would amount to a sum in the order of $30,000. It seems to me that from this time he was able to engage in a range of other employment, but has made no effort to do so, relying instead on workers compensation benefits. I would accept that although he no longer had significant restrictions on his ability to work from October 1999, there remained a restriction on heavy labour, and in this sense I prefer the views of Dr Andrews and Speldewinde to the defendants doctors, even accepting that they had been given a misleading history. I would allow a buffer for the period from October 1999 to the present in the sum of $15,000. This amounts to an award for past economic loss in the sum of $45,000. No interest should be awarded because he has received more than this by way of workers compensation payments, so he is not out of pocket.

39. He has received weekly compensation payments of $77,015. Counsel agreed that a Fox v Wood component could be taken to be 15% of this, but the evidence of the payments (exhibit 9) states that the tax paid was $7,946, and I award this sum.

40. In respect of future economic loss, I am not satisfied that the particularised claim is made out. I have found that his accident related injuries have resolved to nuisance value symptoms only. I would accept that these symptoms do have some impact on the plaintiff undertaking heavy labouring type activities, although I find that this is itself diminishing. I award the sum of $15,000 by way of a buffer for future economic loss.

41. Out of pocket expenses paid to date by the workers compensation insurer were agreed arithmetically in the sum of $28,951.18, and I award this sum. The workers compensation payments include rehabilitation services, but it seems to me that this is an expense related to the workers compensation process, and neither an allowable common law claim nor a recoverable amount pursuant to the workers compensation payback provisions, and I do not award this sum. Counsel agreed that this was the appropriate way to deal with this expense.

42. The plaintiff particularised an extensive list of ongoing medications and therapies amounting to a lifetime claim for future medicals in the sum of $80,000, plus a pain management course estimated by Dr Speldewinde in the sum of $6000. On my findings as to the plaintiff's ongoing condition, which I find to be low level symptoms of resolving soft tissue injury, this is quiet an inappropriate claim. I do accept that there is some ongoing symptoms, albeit at a low level, and it seems to me that a discretionary award of some $6000, which matches the proposed pain management course, is appropriate.

43. This amounts to a total award of $129,578.18 which I consider to be appropriate in all the circumstances of the case. I will hear the parties as to costs.

I certify that the preceding forty three (43) numbered paragraphs are a true copy of the Reasons for Judgment herein of Master T. Connolly

Associate:

Date: 26 July 2002

Counsel for the Plaintiff: Mr G Lunney

Solicitor for the Plaintiff: Snedden Hall & Gallop

Counsel for the Defendants: Mr R Crowe

Solicitor for the First Defendant: Minter Ellison

Solicitor for the Second Defendant: ACT Government Solicitor

Date of hearing: 17, 18, 19 June 2002

Date of judgment: 26 July 2002