Valadbeagy v Transport Accident Commission [2022] VCC 277 (15 March 2022)

Last Updated: 9 November 2022

IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION	Revised Restricted Suitable for Publication
SERIOUS INJURY LIST

Case No. CI-20-04859

KAMRAN VALADBEAGY	Plaintiff
v
TRANSPORT ACCIDENT COMMISSION	Defendant

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JUDGE:	HIS HONOUR JUDGE CARMODY
WHERE HELD:	Melbourne
DATE OF HEARING:	9, 10 and 11 February 2022
DATE OF JUDGMENT:	15 March 2022
CASE MAY BE CITED AS:	Valadbeagy v Transport Accident Commission
MEDIUM NEUTRAL CITATION:	[2022] VCC 277

REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT

Catchwords: Serious injury application – psychiatric injury – chronic pain syndrome – physical injury to the back, including cervical, thoracic and lumbar spine – whether the consequences to the plaintiff are “serious” – credit of the plaintiff

Legislation Cited: Transport Accident Act 1986, s93

Cases Cited: Richards & Anor v Wylie (2001) 1 VR 79; Mobilio v Balliotis [1998] 3 VR 833; Humphries and Anor v Poljak [1992] VicRp 58; [1992] 2 VR 129; Church v Echuca Regional Health [2008] VSCA 153; (2008) 20 VR 566

Judgment: The application for serious injury certification in respect of the psychiatric injury as a result of the transport accident which occurred on 1 September 2015 is dismissed.

The application for serious injury certification in respect of the physical injury to the plaintiff’s lumbar spine, including the cervical, thoracic and lumbar spine, as a result of the transport accident on 1 September 2015 is granted.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P D Elliott QC with Mr B Johnson	Shine Lawyers
For the Defendant	Mr A J McG Moulds QC with Mr S Pinkstone	Solicitor to the Transport Accident Commission

HIS HONOUR:

1. This is an application brought by Originating Motion dated 1 November 2020. The plaintiff applies for leave pursuant to s93(4)(d) of the Transport Accident Act 1986 (“the Act”) to bring proceedings to recover damages for injury suffered by him arising out of a transport accident which occurred on 1 September 2015 (“the said date”).
2. Section 93(6) of the Act provides that a court must not give leave under s93(4)(d) unless it is satisfied the injury suffered by the plaintiff is a “serious injury”. In this application, the definition of “serious injury” relied upon by the plaintiff is under s93(17):

“(a) serious long-term impairment or loss of body function; or

(b) ...

(c) severe long-term mental or severe long-term behavioural disturbance or disorder ... .”

3. In this application, the plaintiff, in effect, has two separate applications for serious injury. Under s93(17) of the Act, the plaintiff seeks serious injury certification by the Court for:

(a) loss of body function of the spine, including the cervical, thoracic and lumbar spine; and

(b) long-term severe mental or behavioural disturbance or disorder.

4. The enquiry under s93(17)(a) of the Act focuses attention, first upon whether the injury has produced an organic impairment or loss of body function and, then, by reference to the consequences of that impairment, determine whether it is serious or long term.
5. The serious injury defined by ss(a) can have its seriousness measured, in part, by a mental response to a physical impairment. What it will not recognise is, that the mental disorder can, of itself, constitute, or be the producer of, an impairment of the body function.^[1]
6. The serious injury in respect of s93(17)(c) requires the level of impairment to be “severe”.^[2] In forming the judgment as to whether the consequences and the injury are serious, the question to be asked is:

“... can the injury, when judged by comparison with other cases in the range of possible impairments or losses, be fairly described as at least ‘very considerable’ and certainly more than ‘significant’ or ‘marked’?”^[3]

7. The plaintiff swore and relied upon three affidavits, dated 22 September 2017, 15 June 2021 and 14 December 2021. The plaintiff gave evidence and was extensively and intensively cross-examined, particularly in relation to his credit.
8. The plaintiff also relied upon the affidavit of his wife, Qamarbaz Binandeh. The plaintiff’s wife was not required for cross-examination.
9. In addition to the affidavits referred to above and the evidence given by the plaintiff, both parties relied upon medical reports and other materials which were tendered during the course of the proceeding. I have read all the relevant tendered medical material.
10. The tendered evidence in this proceeding was as follows:
    • The plaintiff tendered the following documentation:
      • Exhibit “A” – Plaintiff’s Court Book (“PCB”), documents numbered 4 to 7; 10 to17; 21 to 25; 28 to 32; 34 to 39; 51 to 56; 67 (pages 256 to 258) and 80 to 83 inclusive.
      • Exhibit “B” – a screenshot of the current medication prescribed by the plaintiff’s treating psychiatrist, Dr Ehsan Rahimikia.
      • Exhibit “C” – document setting out the definition of kinesiophobia.
      • Exhibit “D” – a schedule of surveillance prepared by the defendant.
    • The defendant tendered the following documentation:
      • Defendant’s Court Book (“DCB”), documents numbered 11; and 13 to 18 inclusive.
      • Exhibit 2 – surveillance footage DVDs:

(i) DVD dated 29 November 2017; and

(ii) DVD dated 4 April 2018, one, two and three.

11. The issues in this application by the plaintiff were set out by Mr Moulds, Senior Counsel for the defendant. The issues are as follows:

(a) the accuracy of histories given to the doctors by the plaintiff in respect of:

(i) the plaintiff’s symptoms; and

(ii) the activities and lifestyle of the plaintiff;

(b) the credibility of the plaintiff;

(c) whether the psychiatric injury and condition complained of by the plaintiff is sufficient to reach the “severe” test; and

(d) what basis is there for a chronic pain syndrome claimed by the plaintiff in respect of the injury to his spine.

The Plaintiff’s background

12. The plaintiff was born in Iran. He is now thirty-nine years of age.^[4] The plaintiff came to Australia in 2011. He lives with his wife and four children.^[5]
13. The plaintiff was educated to the age of fifteen years in Iran. He then worked as a tailor. Since coming to Australia, the plaintiff has been continually in work up until the time of the transport accident.
14. Immediately prior to the transport accident, the plaintiff was working in three jobs. The plaintiff was employed full time as a delivery driver and an office administrator with Kids Club Family Day Care Scheme Pty. He also conducted, with a friend, a tailoring business. The plaintiff was a trained tailor in Iran. The plaintiff’s third employment was that of an Uber driver.^[6]
15. The plaintiff has not worked since the transport accident on 1 September 2015. The plaintiff continues to live with his wife and four children. The plaintiff’s evidence is that he leads a very limited life due to the pain that he suffers as a result of the transport accident.^[7]
16. The plaintiff’s current income is that of a disability support pension from Centrelink and he also receives some income protection payments from his superannuation fund.^[8]

The transport accident

17. The plaintiff described the transport accident in the following terms:

“At about 7 pm on 1 September 2015, I was stationary in my car, waiting to turn into the driveway of my home when another car came from behind and crashed into my car, causing me injury.”^[9]

18. Immediately after the accident, an ambulance took the plaintiff to the Sunshine Hospital. Upon arrival at the hospital, the plaintiff received a telephone call from his wife, who told him that their youngest daughter was unwell. The plaintiff then left the hospital in order to attend to his wife and daughter’s concerns.^[10]
19. The plaintiff then returned to hospital a few days later and was an inpatient at the Footscray Hospital for two to three nights.
20. Since that time, the plaintiff has received extensive medical treatment for both his physical and mental state.

The credit of the Plaintiff

21. Mr Moulds QC, on behalf of the defendant, set out very clearly that the principal issue in this application was the credibility of the plaintiff. Surveillance film of the plaintiff was shown to the plaintiff during his cross-examination.
22. The first day of the surveillance film shown was on 21 November 2017. There are three short pieces of video for that day. The first was at 11.47am, when the plaintiff is at the boot of his red Subaru sedan. His registered number plate was “Valad”. The plaintiff walks away from the car with the assistance of a single-point walking stick, and a limp. The second video commences at 12.03pm and shows the plaintiff walking with the walking stick. He limps. He is accompanied by his wife and two daughters.
23. Shortly thereafter, at 12.12pm on the same day, the plaintiff is walking alone in the shopping arcade. The limp has gone. He did not have a walking stick. The plaintiff walks normally and attends a post office. At 12.20pm, the plaintiff is walking without a walking stick and speaking on a mobile phone in the shopping arcade.
24. The third video commences at 1.00pm on 21 November 2017. The plaintiff is shown walking in a carpark with his eldest daughter. He does not have a walking stick. He carries a pet cage and places it on the back seat of the red Subaru sedan. The plaintiff then opens the driver’s door of the car and bends freely into the car to reach something inside it. He then puts his left leg into the driver’s footwell while standing on his right leg on the raised footpath area next to his parked vehicle. The boot of the car is open. The plaintiff’s wife is on the passenger side near the rear of that car. The plaintiff can then be seen lifting and placing a child’s pusher/stroller into the boot of the car. In this third video, the plaintiff appears to be moving freely and without any physical restrictions in respect of walking, bending or lifting the stroller into the boot of the car.
25. The ability to conduct these movements and activities within an hour and a quarter of being observed limping and needing a walking stick is difficult to reconcile. The whole of this surveillance on 21 November 2017 covers a period of 90 minutes.
26. The second day of surveillance shown was 23 November 2018. The first part of the film is at 8.59am. The plaintiff is driving a silver Holden Cruse sedan. At 12.34pm, the plaintiff is walking without a limp or walking stick in a shopping mall carpark and meets his brother. They walk off in the direction of his brother’s workplace office, which is near the shopping centre. At 3.24pm, the plaintiff is observed walking normally and is picking his daughter up from school. The film concludes at 3.33pm.
27. The third day of surveillance film was 25 March 2018. The filming starts at 10.20am and concludes at 10.45am. The plaintiff is seen with a woman he describes as his former business partner attending a coffee shop in a shopping mall. They go to a Direct Chemist shop and then return to the coffee shop, and can be seen in conversation for nearly 20 minutes. They then both leave, walking towards the car in the carpark together. In the film, the plaintiff can be seen bending to pick up shopping bags without difficulty. He is seen walking normally and without a walking stick. His interaction with his coffee companion is lively, jovial and, to the casual observer, a normal enjoyable meeting between two people. There were no signs of pain reaction or behaviour at any time by the plaintiff.
28. The fourth day of the surveillance was on 28 March 2018. The filming for this day covered the period of time from 9.06am to 3.38pm on that day. The first images are at 9.06am, where the plaintiff is driving a silver Holden Cruse. There is only limited vision of the plaintiff’s movements. At 9.23am, the plaintiff is seen taking a jacket off and placing it in his car. The plaintiff gets into the driver’s seat with no apparent difficulty and drives the car away. The surveillance then resumes at 11.07am, where the plaintiff is speaking to workmen in the front-yard area of his home. He and his wife then walk down the street together. At 11.00am, the plaintiff is seen pushing a stroller with a young child onboard. He appears to be walking normally and at a quick pace. His wife was hurrying to keep up with him.
29. By 12.08pm, the plaintiff, in a red t-shirt, is walking back alone towards his home. I would describe the walking as “ambling along” the street with an unusual gait, but not a limp. He arrives at his home at 12.16pm and speaks to the workmen at the front of his house. The plaintiff appears to be agitated in the conversation. At 12.17pm, the plaintiff is shown walking from his front yard. He is on the phone. He is wearing thongs on his feet. He walks continuously along the street, appearing to speak on the phone. He continues to appear agitated during the phone call. At 12.33pm, the plaintiff stops and leans up against a tree near a park. After a short break, he walks down the street again. In this period of surveillance, the plaintiff appears to walk without difficulty, there is no walking stick used by him, and there are no actions of his indicating that he is in pain, such as rubbing his back or sitting down to rest, at any time.
30. The last piece of surveillance is at 3.23pm on 28 March 2018, when the plaintiff has changed his clothes and is walking down the street. The surveillance concludes at 3.38pm, with the plaintiff walking down the street with a schoolbag over his shoulder. The walking action of the plaintiff appears to be normal.

Analysis

31. The first matter to note about the surveillance film in this proceeding is it is nearly four years before the day of the hearing. The second factor to note is that, in total, there has been a total of 102.5 hours of surveillance conducted on the plaintiff. The Court has been shown a total of 49 minutes and 44 seconds of video. The majority of the surveillance, that is 71.5 hours, was conducted up until 28 March 2018. The film shown represents 1.4 per cent of the total time of surveillance for that period.
32. Notably, there was a gap in surveillance of the plaintiff from 28 March 2018 to 15 July 2021. On four separate days, namely 15 July 2021, 5 August 2021, 15 November 2021 and 28 November 2021, surveillance was conducted on the plaintiff. A total of 31 hours of surveillance was conducted on those days. According to the schedule of surveillance, only 30 seconds of film was made on 15 July 2021. This film was not shown in the hearing. Consequently, there is no surveillance film of the plaintiff which is proximate to the hearing date of this proceeding.
33. A number of medical practitioners, both treaters and medico-legal examiners, have not seen the video surveillance film shown in this case. Those medico-legal practitioners include:

(a) Dr Ales Aliashkevich, neurosurgeon;

(b) Dr Nader Mahani, general practitioner;

(c) Dr Gavin Weeks, pain specialist;

(d) Dr Azin Malekzadeh, general practitioner;

(e) Dr Malcolm Ong, pain specialist;

(f) Dr Clayton Thomas, pain specialist;

(g) Dr Thomas Kossmann, orthopaedic surgeon;

(h) Dr Linda Byrne, neuropsychologist;

(i) Dr Katherine McQuillan, psychiatrist.

34. Each of these doctors, in their reports, note that the plaintiff presented to them as being severely disabled by his physical injuries and pain. Some of them were either examining or treating him at around the time of the surveillance film shown in this Court; that is, late 2017 and early 2018. The stark difference between the plaintiff’s presentation and the history to these doctors, and the activities of the plaintiff shown on the surveillance film, cast some doubt as to the efficacy of the medical opinions expressed by them. Those doctors have been denied the opportunity to either confirm their original opinions or, alternatively, provide an explanation or further opinion about the plaintiff’s injury and the consequences he sets out in his evidence as a result of the injury from the transport accident.
35. The doctors relied upon by the plaintiff in support of his application for a serious injury certificate who have seen the video surveillance film are:

(a) Dr Ali Kian Mehr, pain specialist;

(b) Dr Russell Miller, orthopaedic surgeon;

(c) Dr Richard Sullivan, interventional pain specialist and specialist anaesthetist

(d) Professor Richard Bittar, consultant neurosurgeon;

(e) Dr Albert Kaplan, psychiatrist;

(f) Dr Ehsan Rahimikia, treating psychiatrist; and

(g) Dr Fariba Kavianpour, treating psychologist.

36. Each of these medical practitioners maintain their initial diagnosis in respect of the plaintiff, even after seeing the surveillance film. I have dealt with their opinions in the medical opinion section of this Judgment.
37. The defendant relies on the medical opinions of:

(a) Dr Michael Epstein, psychiatrist;

(b) Dr Nigel Strauss, psychologist; and

(c) Dr Peter Wilde, orthopaedic surgeon.

38. Dr Wilde, in his report of 21 April 2021, makes no reference to the surveillance film, but notes no less than fifty-five separate documents that were sent to him prior to examining the plaintiff. In his report dated 21 June 2021, Dr Wilde concluded there was minimal physical restriction of the plaintiff’s lower back or cervical spine. Dr Wilde stated that the film of the plaintiff showed significant discrepancies of the symptoms that were as stated by the plaintiff two months earlier at the time of his initial examination. Dr Wilde concluded:

“I do not believe this man has a significant ongoing physical disability or impairment and if he is restricted in any way, it is secondary to a pain syndrome with a psychological basis.”^[11]

39. Dr Nigel Strauss examined the plaintiff after he had viewed the surveillance films. Dr Strauss concluded there were inconsistencies in relation to the plaintiff’s presentation at interview and the surveillance footage.^[12] Dr Strauss stated as follows:

“I discussed with Mr Beagy the surveillance material and he stated that he has never been active and if he was active in the surveillance material it was because he took strong analgesia. I put it to him that he did not look as if he was under the influence of strong analgesia and he looked relaxed and happy particularly in the films of him being with his wife and eating. He argued quite laterally when I put these suggestions to him and he made little sense and I felt that his explanations were inadequate.”^[13]

40. I note that Dr Strauss mistakenly presumed the woman in the video at the coffee shop was the plaintiff’s wife. Overall, the surveillance footage caused Dr Strauss to form the opinion there is a major concern about the plaintiff’s credibility. Dr Strauss goes on to state as follows:

“I believe that this man may suffer from symptoms of anxiety and depression and possibly psychologically based pain. However making a psychiatric diagnosis is extremely difficult when the veracity of the patient or individual is in doubt and I believe that it is inappropriate to make a fixed diagnosis in a case like this under these circumstances.

...

Ultimately his motivations are difficult to dissect and understand.”^[14]

41. Dr Epstein examined the plaintiff on 6 December 2016 (before the surveillance film was taken) and after the films were produced on 19 September 2019. Dr Epstein’s opinion is as follows:

“However the video surveillance consistently shows a man who appears to be moving freely, and has a pleasant sociable manner and is able to carry parcels, lift a pram into the boot of a car and apparently function normally, including driving a car on the days he was placed under surveillance. In the video of November 2017 and again in March 2018 he was seen limping for a short duration using his walking stick and then walking freely. Indeed on 28 March 2018 he walked freely for thirty-three minutes with a brief stop to speak on his phone. Later that morning he sat having coffee with a friend/wife for eighteen minutes with no indication of any discomfort.

His explanation was that he was heavily medicated, that may be but there were no indications on the video of the effect of use of strong analgesic such as slow movements or lethargy. The video surveillance material is now between 17-22 months old and there may have been major changes since then. However the symptoms he described when first seen on 7 December 2016 are little changed from those he described at this interview.

The opinion gained is that there must be major concern about his credibility. Accordingly I am unable to make a diagnosis, give any reasonable opinion about his mental state or the effect of his alleged injuries on his work capacity, his relationships or his recreational enjoyment.

The video surveillance evidence suggests that his capacity both physically and mentally is much greater than he has indicated.”^[15]

42. In summary, Dr Epstein does not accept the plaintiff has given a true and accurate history of symptoms and complaints and therefore was unable to make a diagnosis. Dr Epstein does conclude the plaintiff is able to do more than he has indicated to him in the two separate examinations that have taken place.
43. The surveillance film is of short duration and very old in respect of the date of hearing. It is fair to say that the plaintiff, on the same day, can appear to be very disabled and subsequently appear to be without significant restriction in his movements. The subsequent surveillance of the plaintiff in 2021 has not revealed any film of him acting in an unrestricted manner. Of the 31 hours of surveillance over the four separate days in 2021, the plaintiff was not filmed doing anything that was shown to the Court. I cannot speculate on whether the plaintiff was seen during the course of surveillance or whether he was filmed for any longer than the 30 seconds referred to in the schedule. The treating doctors of the plaintiff who have seen the surveillance film maintain their opinions that the plaintiff is severely restricted as a result of the injuries to him in the transport accident.
44. While I accept that the surveillance film of the plaintiff taken in 2017 and 2018 gives rise to some cause for reservation about the plaintiff’s credibility, I am not satisfied that his credibility has been sufficiently damaged by the cross-examination or the surveillance film to ignore or set aside the opinions of the treating medical practitioners who have seen the same surveillance film. While these applications are not trial by doctor, the opinions of treating doctors are of significant relevance when assessing the credibility and impact of injuries upon the plaintiff.
45. I have had the advantage of seeing the plaintiff give his evidence on Zoom video. The plaintiff answered the questions in a reasonably argumentative manner. Nevertheless, his answers were consistent, and even after searching cross-examination regarding the video-surveillance film and straight attacks on his credit, the plaintiff maintained his position. The final bit of evidence from the plaintiff in the course of cross-examination was telling.
46. The following exchange occurred between Mr Moulds, Senior Counsel for the defendant. The plaintiff was asked:

Q: “... I’m going to put this to you, Kamran, that you have been over the years since this accident deliberately going to doctors and presenting yourself as a limping man, often leaning forward, with great difficulty walking, when in fact you’re able to walk pretty well perfectly normally; what do you say to that?---

A: So what is the point for me to pretend that way when I don’t understand, when I had my own - before the accident I had my own business, I had three different jobs, I had a really good income, and now, you know, I have to struggle and beg different people for money and be able to - you know, then my family is suffering now and in pain myself. Whereas, if it wasn’t for that and I was continuing to do my business, or still have everything that I had prior to the accident, or if it wasn’t for the accident I would have had a perfect life with a perfect income and everything, so I don’t get it, what’s the point for me to do that for TAC? So, now you think this way about me, even though from day one TAC have been asking me, ‘what do you want? What do you need? What is your intention? What is your goal?’, I have been always saying, ‘I want to get better and be able to get to my normal life’ but now you say this, you know what, His Honour is here, he’s the judge and I believe in him, he’s sitting in the place of justice, so I leave it all up to him to judge me.”^[16]

47. The Court of Appeal in Church v Echuca Regional Health^[17] indicated that judges, as first instance, should carefully examine the surveillance footage and compare it to the physical movements of the plaintiff before making an adverse finding about the plaintiff’s credibility. In this case, the surveillance footage shows the plaintiff being able to walk in a reasonably normal fashion. The plaintiff can also be seen picking up and placing a pusher into the boot of his car. Those actions, of their own, do not show that the plaintiff is an unreliable witness and/or patient to his treating practitioners. I am not satisfied that the surveillance footage has damaged the credibility of the plaintiff to the extent that I do not accept him as a witness doing the best he can to give his evidence to the Court and describe his symptoms to his treating medical practitioners.

Medical treatment

48. The plaintiff was taken from the scene of the transport accident by ambulance to the Western General Hospital at Footscray.^[18] The plaintiff left the emergency section of the Footscray Hospital when he was advised that one of his children was sick.
49. The plaintiff returned to Western General Hospital and was admitted on 5 September 2015.^[19] The plaintiff remained in hospital for a number of days. While in hospital, the plaintiff had a series of radiological examinations. Relevantly, the plaintiff had an MRI examination of his cervical and thoracic spine performed on 6 September 2015. The conclusion was that the plaintiff suffered:

“Minor interspinous oedema in mid C spine, spinous process tip oedema upper T spine. No cord oedema / epidural hematoma.”^[20]

50. On the same day, the plaintiff underwent a CT scan of his whole spine. The conclusion from that examination was:

“Minimally displaced fracture of the spinous process of C2. No other fracture, and no subluxation or dislocation, otherwise detected within the cervical, thoracic or lumbosacral spine.

Please note that soft tissue / ligamentous injury is not evaluated on CT. If there is specific clinical concern then further evaluation with MRI is recommended.”^[21]

51. When the plaintiff was examined, it was noted that tenderness at T10 and C2 areas of the plaintiff’s spine was reproducible. The plaintiff was discharged home with prescriptions for Targin, OxyNorm and Panadeine Forte, with ibuprofen.^[22]

Dr Nadar Mahini, general practitioner

52. The plaintiff attended upon his general practitioner, Dr Nadar Mahani, on 22 September 2015. The plaintiff remained a patient of Dr Mahani until 4 July 2017, when he attended a different general practitioner.^[23] Dr Mahani had referred the plaintiff to the pain management clinic known as Precision. Dr Mahani had prescribed Valium, Panadol, Targin, Valdoxan and sometimes Oxycodone.
53. In Dr Mahani’s opinion:

(i) there was no obvious reason found for the plaintiff’s complaints of pain. He stated that no surgical intervention would be beneficial to the plaintiff;

(ii) the plaintiff had been mentally affected by the injury and was not able to walk or work properly due to his somatic and/or neurotic reasons;

(iii) the plaintiff needed more psychological and pain management sessions on assessment.^[24]

54. I note that Dr Mahani was never shown the surveillance film of the plaintiff.

Dr Ales Aliashkevich, neurosurgeon and spine surgeon

55. The plaintiff first attended upon Dr Ales Aliashkevich on 2 November 2015.^[25] Dr Aliashkevich examined the plaintiff and made the following findings:

“On neurological examination, ... [the plaintiff] had no focal deficit and had some paravertebral tenderness on palpation of his cervical spine when the collar was removed. He had some stiffness of the neck and lower back muscles and had a very antalgic and slow gait holding the lumbar region with his hand.”^[26]

56. Dr Aliashkevich diagnosed the plaintiff as suffering from a whiplash neck injury, with stable minimally-displaced C2 spinous process and left lamina fractures.^[27]
57. In his report dated 2 May 2017, Dr Aliashkevich stated that:

“Taking into account his physical restrictions, chronic pain condition and unemployment since his injury in September 2015, your client has no capacity for preinjury or alternative duties.”^[28]

58. Dr Aliashkevich noted that the plaintiff was unable to lift anything heavy, nor was unable to run, bend or twist his back or neck. Dr Aliashkevich did not have the advantage of seeing the surveillance film of the plaintiff which was taken around the time of his report.

Dr Gave Weekes, pain specialist

59. Dr Gavin Weekes first examined the plaintiff on 2 February 2016. The plaintiff had been referred to him by Dr Aliashkevich. At the time of the initial review, Dr Weekes noted that the plaintiff’s medications included the following:

“Lyrica 150 mg twice a day, Panadeine Forte, Naprosyn, Endep 25 mg, OxyNorm 5 mg twice a day, Targin 10 mg twice a day, tramadol 50 mg prn, Panadol. He was also receiving tramadol I [intramuscular] injections and was also on occasions attending the Accident and Emergency for intramuscular injections of morphine.”^[29]

60. In his report dated 14 June 2017, Dr Weekes provided his opinion that the plaintiff was diagnosed with cervical, thoracic and lumbar spondylosis, with evidence of regional chronic myofascial pain and central sensitisation.^[30] In Dr Weekes’ opinion the plaintiff, at that time, had no capacity for employment secondary to the effects of his injuries sustained in the transport accident on 1 September 2015.
61. Dr Weekes did not have the advantage of viewing the surveillance film of the plaintiff. Consequently, Dr Weekes has not made any comment about the plaintiff’s condition, having been informed by any movements detected by him of the plaintiff while being under surveillance.

Dr Azin Malekzadeh, general practitioner

62. The plaintiff’s present general practitioner is Dr Azin Malekzadeh. The undated report of Dr Malekzadeh appears at Plaintiff’s Court Book 229. The plaintiff’s general practitioner has referred the plaintiff to a pain specialist and a psychiatrist. Dr Malekzadeh confirmed that the plaintiff was prescribed Panadeine Forte, Tramadol and Gabapentin with minimal effect.^[31] The general practitioner’s opinion is that the plaintiff suffers from chronic pain which has severely impacted upon the activities of the plaintiff and has caused reactive depression to the plaintiff.^[32] The general practitioner has not been shown the surveillance film and consequently has made no mention of it in his report.

Dr Katherine McQuillan, psychiatrist

63. The plaintiff’s first treating psychiatrist was Dr Katherine McQuillan. Dr McQuillan first saw the plaintiff on 2 March 2016. At that first consultation, Dr McQuillan noted the plaintiff was taking a combination of Panadeine Forte, Endone, Targin, Tramadol, amitriptyline and Lyrica. She also noted that the plaintiff occasionally had Tramadol injections from his general practitioner.^[33]
64. Dr McQuillan diagnosed the plaintiff as suffering from Post-Traumatic Stress Disorder and Depression in the context of chronic pain. At the initial stage, Dr McQuillan was unable to determine whether the Depression is more in keeping with an Adjustment Disorder or a Major Depressive Disorder due to the overriding symptoms of Post-Traumatic Stress Disorder, but she anticipated that could be clarified with further observations.^[34]
65. Dr McQuillan continued to treat the plaintiff up to 2021. In her final report dated 2 October 2020, Dr McQuillan stated:

“From a psychiatric perspective, ... [the plaintiff’s] prognosis is guarded. This is primarily as his mood condition (depression) has arisen in the context of persistent pain. As such, any significant change in his physical status will impact his mood.

Although the trauma-specific symptoms persist, it his depressive disorder that is more functionally impairing.

There has been very little shift in his mood over the years that I have seen him, despite trialling several different antidepressants and sleeping agents, and his attending psychological therapy. I would thus anticipate that he will continue to have sustained and pervasive mood symptoms, that impair his functioning for the foreseeable future.”^[35]

66. Dr McQuillan had prescribed antidepressant therapy in the form of nortriptyline, 100 milligrams nocte. The plaintiff was also taking Circadin as a sleeping tablet at that time.
67. Dr McQuillan has not been shown the video surveillance film of the plaintiff. In Dr McQuillan’s opinion, the plaintiff’s psychiatric condition was dependent on the plaintiff’s reaction to the physical pain or, as she described it, the Chronic Pain Syndrome.

Dr Malcolm Ong, pain specialist

68. The plaintiff was referred to Dr Malcolm Ong at the Advanced Healthcare Pain Management Program. He commenced that program in September 2017.^[36] The plaintiff failed to fully complete the multidisciplinary pain management program and was discharged early in March 2018. The DVD surveillance film was taken of the plaintiff during the course of his time in the Pain Management Program. He gave a history to Dr Ong that he was not able to drive a car.^[37] Dr Ong noted that the plaintiff’s gait was very slow and guarded, and he was limping and using a walking stick. On occasion, the plaintiff used a back splint.^[38]
69. Dr Ong noted that the plaintiff’s prognosis remained guarded, and it was likely he will suffer persistent pain symptoms, pain-related issues and secondary psychological concerns, and limited capacity for the foreseeable future.^[39] Dr Ong was not shown the video surveillance film and hence he was unable to comment on what, if any, impact, the movements shown of the plaintiff in the video surveillance film would have on his opinion.

Professor Richard Bittar, consultant neurosurgeon

70. The plaintiff was referred to Professor Richard Bittar. The plaintiff first attended Professor Bittar on 20 November 2018. Professor Bittar recommended that the plaintiff undergo an MRI scan of his cervical spine, a cervical and lumbar SPECT/CT and a flexion and extension cervical and lumbar spine x-ray. Professor Bittar also referred the plaintiff to Dr Ali Mehr, pain specialist, for treatment. Professor Bittar’s opinion was that the plaintiff suffered from an aggravation of his cervical spondylosis and an aggravation of his lumbar spondylosis.^[40] In Professor Bittar’s opinion, the plaintiff was totally incapacitated for work.^[41]
71. In a later report dated 29 June 2021, Professor Bittar noted that he had reviewed the surveillance material which had been provided to him and was, in total, for a period of one hour. This surveillance was said to have taken place in 2017 and early 2018. In respect of the surveillance video, Professor Bittar stated as follows:

“The activities seen in the surveillance video do not cause me to alter the opinions expressed in my previous report in relation to his diagnosis or treatment requirements. If the activities he was seen to be undertaking were typical of his functional capacity for the majority of the time, I would be of the opinion that he does have the physical capacity to undertake sedentary work on a full time basis. I would however remain of the view that he would not have the capacity to undertake workplace activities of a moderate or heavy physical nature consistently and reliably.

If the activities that he was seen to be undertaking in the surveillance video were undertaken on ‘good days’ or where he had taken significant amounts of medication in order to be able to undertake usual activities of daily living (such as shopping), then I would be of the opinion that he most likely would not have the capacity to undertake even light physical work on a full time basis reliably and consistently ... .”^[42]

72. Professor Bittar went on to say that, at best, the plaintiff was able to undertake sedentary work for a period of 20 to 25 hours per week.
73. Professor Bittar noted that the plaintiff’s prognosis was guarded. He noted that the plaintiff had sustained a serious injury to his spine, evidenced by the C2 fracture, and on the basis of that information, and the information obtained from the plaintiff, he was most likely to continue to experience significant symptoms for the long term.^[43]
74. In the final part of his report, Professor Bittar stated:

“... Given that the surveillance material was taken in late 2017 and early 2018, and considering the limitations of interpreting such surveillance material, I remain of the opinion that the consequences of his injury described by the relevant medical material are consistent with the surveillance footage. I reiterate that he was not seen undertaking heavy activities in the surveillance footage and on one occasion, he was noted to be using a walking stick and walking with a limp, suggesting that he was experiencing lower back pain at least.”^[44]

75. Professor Bittar was a treating neurosurgeon who has had the advantage of seeing the video surveillance film. The opinion of Professor Bittar has not been altered as a result of his viewing the surveillance film, and he holds to the opinion that the plaintiff has suffered from aggravation to the cervical and lumbar spondylosis.

Dr Ali Kian Mehr, pain specialist

76. The plaintiff was referred to Dr Ali Kian Mehr by Professor Bittar. The plaintiff first saw Dr Mehr on 28 February 2019.^[45] Dr Mehr treated the plaintiff over a number of occasions during the course of 2019 and up 12 August 2020. At that time, the plaintiff was on the medications of nortriptyline, 100 milligrams daily; Circadin Valdoxan and Celebrex.^[46] Dr Mehr’s diagnosis was that the plaintiff suffered from:

(a) chronic cervical spine pain due to aggravation of a cervical spondylosis;

(b) chronic interscapular thoracic spine pain due to disc protrusion at T7-T8 level and also aggravation of the spondylosis;

(c) chronic lumbar spine pain due to aggravation of the lumbar spondylosis; and

(d) chronic right knee pain due to meniscal damage, as has been recorded above.^[47]

77. Dr Mehr also noted that the plaintiff suffered symptoms of Post-Traumatic Stress Disorder and Depression, and he thought it was related to his injury and chronic pain.
78. In his report dated 3 September 2020, Dr Mehr stated that the plaintiff suffered from a chronic pain condition which was stopping the plaintiff from being able to return to pre-injury work due to the physical impact of the chronic pain on him. In short, the plaintiff had no capacity for employment.^[48]
79. Dr Mehr continues to treat the plaintiff. In his report dated 13 December 2021, he noted that his last review of the plaintiff was on 13 December 2021. At that stage, the plaintiff was taking the following medications: Panadeine Forte, Pristiq, Gabapentin, Seroquel and Tramadol.^[49] Dr Mehr then prescribed Naproxen, 75 milligrams daily.
80. Dr Mehr was shown the surveillance film. In a report dated 2 February 2022, Dr Mehr, after viewing the surveillance film and updating the observations of the plaintiff, stated that the plaintiff had no physical work capacity due to his physical limitations as a result of the chronic pain on a consistent and reliable basis.^[50]
81. In respect of the surveillance film, Dr Mehr stated as follows:

“I went through the surveillance footage. I do not believe that this surveillance footage is against what I reported for his functional limitations. I think this surveillance report matches the reported functional limitations.”^[51]

Dr Fariba Kavianpour, clinical psychologist

82. The plaintiff has been receiving treatment from Dr Fariba Kavianpour since February 2020.^[52] Dr Kavianpour has diagnosed the plaintiff as suffering from moderate to severe Post-Traumatic Stress Disorder with associated depression.^[53] Dr Kavianpour, in the report dated 12 November 2021, stated that the plaintiff had no capacity for work due to his poor mental state. Dr Kavianpour stated that the plaintiff’s prognosis in relation to his mental state depended on his pain and functional capacity, and noted that the prospects of a full recovery were unfavourable.
83. As part of this proceeding, the notes of Dr Kavianpour were tendered. The notations and reports by the plaintiff to Dr Kavianpour are descriptive of a limited ability to walk, to sit and having falls. These notations are for 8 May 2020. Another notation of concern was that the plaintiff stated he had not driven since the transport accident involved in this case. At a later time in the reporting, the plaintiff stated he avoided driving but, on occasions, does drive. Overall, I note that the reporting by the plaintiff fluctuates as to the severity of his symptoms and condition. That is understandable. It is common experience that people suffer more severe symptoms on some occasions than on others.
84. Dr Kavianpour has had the advantage of seeing the video surveillance film and surveillance materials. Dr Kavianpour stated as follows, in an email dated 1 February 2022:

“... The surveillance materials do not mean that he does not have pain as he takes pain medications to manage his pain. It also does not show if he does or does not experience mental health issues that he reports he does. So, I do not see any reason to change my report. If the client’s report of his pain syndrome would be considered valid from the legal point of view, so would his report of his mental state and life circumstances, as he reports that all of these issues have occurred in reaction to his accident and consequent chronic pain syndrome.”^[54]

85. It is clear from that statement by Dr Kavianpour, his opinion is not changed by watching the surveillance film taken in 2017 and 2018.

Dr Ehsan Rahimikia, psychiatrist

86. The plaintiff was referred to Dr Ehsan Rahimikia. Dr Rahimikia first saw the plaintiff on 7 May 2021, after Dr McQuillan had retired. Dr Rahimikia is a consulting treating psychiatrist for the plaintiff. Dr Rahimikia diagnosed the plaintiff as suffering from Major Depressive Disorder (moderate to severe) associated with anxious distress. He also noted the plaintiff suffered from Panic Disorder. Dr Rahimikia also provided reports dated 19 November 2021 and 25 January 2022. Dr Rahimikia continues to see the plaintiff. In a text message dated 1 February 2022, Dr Rahimikia confirmed that the plaintiff’s current psychiatric medications are Pristiq, 300 milligrams mane; quetiapine, 300 milligram nocte and zopiclone, 3.25 to 7.5 milligram nocte.^[55]
87. In Dr Rahimikia’s opinion, the plaintiff’s condition has stabilised. He stated that the plaintiff needs to continue to see the psychiatrist every few months and continue to take the psychotropic medication referred to above.^[56] Dr Rahimikia stated that the plaintiff has no capacity for employment.
88. Dr Rahimikia has had the advantage of seeing the surveillance footage. His comment in respect of the surveillance footage was as follows:

“I don’t have any comment on the footage as I am not specialized in the area of pain management and how his pain and his physical injuries can affect his mobility.”^[57]

89. It is clear from the medical opinions of Professor Bittar, Dr Mehr, Dr Kavianpour and Dr Rahimikia, all of whom have seen the video surveillance film, and state, that the plaintiff has no capacity for employment. They are the treating medical practitioners who have had the advantage of seeing the plaintiff over a period of time, with fluctuating symptoms.

Medical opinions

90. I have previously dealt with the opinions of the treating medical practitioners of the plaintiff.
91. The plaintiff relied upon the following medical practitioners who examined him for the purposes of this application.

Dr Clayton Thomas, consultant in rehabilitation and pain medicine

92. Dr Thomas examined the plaintiff and prepared two reports, dated 23 November 2016 and 17 January 2017. In his first report, Dr Thomas was of the opinion that the plaintiff had developed a Chronic Pain Syndrome. Dr Thomas’s view was that the plaintiff’s pain behaviours were severe.^[58] In the opinion of Dr Thomas, he stated that the plaintiff was not amenable to any form of pain management program at that time. In his later report, Dr Thomas just confirmed his original opinion set out in a report of November 2016. Dr Thomas never had the opportunity to view the surveillance film.

Mr Thomas Kossmann, orthopaedic surgeon

93. Mr Kossmann examined the plaintiff for medico-legal purposes. He examined the plaintiff on 27 June 2017. On the day of the examination, Mr Kossmann observed that the plaintiff entered his rooms bent forward and using one crutch, complaining about severe pain, in particular to his right iliosacral joint. Mr Kossmann noted that the plaintiff displayed pain behaviour and fear avoidance throughout the examination.
94. Mr Kossmann diagnosed the plaintiff as suffering from:

(a) cervical spondylosis;

(b) thoracic spondylosis;

(c) lumbar spondylosis; and

(d) pain behaviour and fear avoidance, responsible for movement restriction of his upper and lower limbs.^[59]

95. Mr Kossmann noted that the plaintiff’s severe pain behaviour and fear avoidance made his examination very challenging. Mr Kossmann’s opinion was that the plaintiff would benefit from a pain management specialist’s treatment.
96. Mr Kossmann did not have the opportunity to view the surveillance film which was taken a couple of months after his examination of the plaintiff.

Mr Russell Miller, orthopaedic surgeon

97. The plaintiff was examined by Mr Russell Miller for the medico-legal purposes in this case. Mr Miller prepared two reports, dated 10 June 2019 and 1 April 2021. On the first examination, Mr Miller noted that the plaintiff walked slowly, only with the use of a walking stick. The plaintiff was unable to safely climb onto the examination couch, and the examination was conducted sitting and standing. The plaintiff could not kneel, squat or hop on either leg.^[60] Mr Miller diagnosed the plaintiff as follows:

“There has been an injury to the cervicothoracic and lumbosacral spine, including musculo-ligamentous strain and aggravation of degenerative disease. There is no evidence of radiculopathy, neurological deficit. There is a C2 spinous process fracture but no evidence of other structural injury. The urinary incontinence is not attributed to spinal injury.

The described injury is associated with the development of a chronic pain syndrome, which influences the current clinical presentation and contributes to the overall fair prognosis.”^[61]

98. Mr Miller also made a comment that the plaintiff also suffered from Anxiety, Depression and the development of a Chronic Pain Syndrome, which he stated complicates the assessment of the plaintiff’s condition.
99. Mr Miller’s opinion was that the plaintiff’s spinal injury made the prospect of the plaintiff working very difficult. He concluded that the plaintiff was limited to weights of 5 kilograms and was to avoid any requirement to lift, or repetitive bending or lifting. Mr Miller’s opinion was that the plaintiff’s current Chronic Pain Syndrome further impacted on the plaintiff’s ability to work.
100. Mr Miller had the advantage of seeing the surveillance material. He very carefully analysed the surveillance material and the movements of the plaintiff shown in that film. Mr Miller noted that it raised the possibility that non-organic factors are operating in this case, including a Chronic Pain Syndrome, and that the reported disability is greater than that observed in some of the surveillance material.^[62]
101. In his later report dated 1 April 2021, Mr Miller confirmed and repeated the diagnosis he had set out in his first report in respect of the spinal injury to the plaintiff. In his opinion, the current clinical status, as described by him, including the development of a Chronic Pain Syndrome, is regarded as being substantially accident related.^[63]

Dr Richard Sullivan, pain specialist

102. Dr Sullivan has examined the plaintiff for the purposes of this litigation and has prepared two reports, dated 8 February 2021 and 10 June 2021. In his first report, Dr Sullivan noted that the plaintiff was showing overt signs of pain behaviour. He stated the plaintiff was extremely kinesiophobic. Dr Sullivan noted that the plaintiff did exhibit a considerable degree of abnormal illness behaviour, but was not satisfied that this presentation was consistent with malingering. In Dr Sullivan’s opinion, it was more likely there was significant kinesiophobia and an inability to express his pain and suffering through language.^[64]
103. Dr Sullivan’s diagnosis was that the plaintiff had sustained aggravation of cervical spondylosis, aggravation of thoracic spondylosis and aggravation of lumbar spondylosis, in the context of the transport accident. Dr Sullivan also noted that the plaintiff had conditions of Major Depressive Disorder, Generalised Anxiety Disorder and Adjustment Disorder.^[65] Dr Sullivan was unable to view the USB of the surveillance footage in the course of preparing his first report.
104. The parties accept that kinesiophobia was first confirmed by Miller and colleagues (1990) as an aspect of the fear avoidance model. Kinesiophobia is:

“A condition in which a patient has an excessive, irrational and debilitating fear of physical movement and activity resulting from a feeling of vulnerability to painful injury or re-injury.”^[66]

105. Kinesiophobia is now defined as a fear of movement, due to the fear of re-injury (Lundberg, Larsson, Östlund, & Styf (2006)) with “individuals who are highly fear-avoidant believing pain to be a sign of bodily harm, and that any activity causing pain is dangerous and should be avoided” (Hapidou et al, 2012). The kinesiophobia referred to by Dr Sullivan is a psychological reaction by the plaintiff to real physical pain as a result of the injuries to his spine.
106. In his second report of 10 June 2021, Dr Sullivan had viewed the surveillance films. Having viewed the surveillance footage of the plaintiff, and making comment about his abnormal illness behaviour, Dr Sullivan maintained his diagnosis of the aggravation of cervical spondylosis, aggravation of lumbar spondylosis and aggravation of thoracic spondylosis. Dr Sullivan noted that the plaintiff’s abnormal illness behaviour does not in any way imply there is not an underlying organic condition resulting in chronic pain.^[67]
107. In a final report dated 7 February 2022, Dr Sullivan confirms his previous opinions. He notes that the condition is completely stable and is unlikely to improve into the foreseeable future.

Dr Albert Kaplan, psychiatrist

108. The plaintiff was examined by Dr Kaplan on 9 March 2021 for the purposes of this application. Dr Kaplan prepared a report dated 12 March 2021. Dr Kaplan took a full and detailed history from the plaintiff. He also had available to him all of the surveillance videos shown to the plaintiff during the course of this hearing.
109. Dr Kaplan’s opinion was as follows:

“In my opinion, ... [the plaintiff’s] Adjustment Disorder is related to his transport accident insofar as his physical injuries are related to that accident and an opinion regarding that matter would need to be obtained from the appropriate medical specialists. His Traumatisation Features are related to the accident.”^[68]

110. In terms of the surveillance film, Dr Kaplan stated that he was unable to make any comment about the inconsistency between the physical injuries complained of by the plaintiff and the video film. In Dr Kaplans’ opinion, that was appropriately dealt with by other specialists. In summary, Dr Kaplan was of the opinion that the psychological and psychiatric condition suffered by the plaintiff as a result of the collision was secondary to the physical injury that the plaintiff complained off.^[69]

The Defendant’s medical opinions

Dr Michael Epstein, psychiatrist

111. Dr Epstein examined the plaintiff on behalf of both the defendant and the plaintiff. He prepared a report dated 7 December 2016, after examining the plaintiff on 6 December 2016. Dr Epstein took a very detailed history and examination of the plaintiff prior to formulating his opinion. Dr Epstein’s opinion was as follows:

“... The extent and severity of his complaints of pain suggest that he has developed a Somatic Symptom Disorder with predominant pain. He has also developed symptoms of a Post Traumatic Stress Disorder although, at times, I was uncertain about ... the reliability of the information he provided. I gained the impression that he was possibly embellishing the extent of is symptomatology.

He has also become severely depressed and now has a Major Depressive Disorder of moderate severity with suicidal ideation and psychotic features ... .”^[70]

112. Dr Epstein then prepared a report dated 19 September 2019, after he had interviewed the plaintiff on that day. On this occasion, Dr Epstein had the advantage of being shown the video surveillance film of the plaintiff. He made the following comments:

“However the video surveillance consistently shows a man who appears to be moving freely, and has a pleasant sociable manner and is able to carry parcels, lift a pram into the boot of a car and apparently function normally, including driving a car on the days he was placed under surveillance. In the video of November 2017 and again in March 2018 he was seen limping for a short duration using his walking stick and then walking freely. Indeed on 28 March 2018 he walked freely for thirty-three minutes with a brief stop to speak on his phone. Later that morning he sat having coffee with a friend/wife for eighteen minutes with no indication of any discomfort.”^[71]

113. Dr Epstein noted that the plaintiff gave an explanation that he was heavily medicated and that is why he could deal with the movements in the video.
114. Ultimately, Dr Epstein’s opinion was that there must be major concerns about the plaintiff’s credibility. Accordingly, Dr Epstein was unable to make a diagnosis or give any reasonable opinion about his mental state, or the effect of his alleged injuries on his work capacity, or his relationships, or his recreational enjoyment.

Dr Peter Wilde, orthopaedic surgeon

115. Dr Wilde examined the plaintiff for medico-legal purposes on 13 April 2021. He prepared a report dated 21 April 2021. In Dr Wilde’s report, he noted that the physical examination of the plaintiff was very difficult, as he believed he was in significant pain, and said he could not move his neck, his back or right shoulder. Dr Wilde observed the plaintiff to walk 20 metres with an exaggerated limp in a stooped flexed position.^[72] Dr Wilde noted that the plaintiff had suffered an undisplaced fracture of C2 spinous process and lamina, which has subsequently healed without displacement.
116. In Dr Wilde’s opinion, there were minor degenerative changes of the cervical spine and lumbar spine without neural compression.^[73] In his report, Dr Wilde refers to a number of prior visits to medical practitioners by the plaintiff for neck and back pain issues. Dr Wilde opined it may be possible the plaintiff had minor symptoms of his neck and lower back which were aggravated by the traffic accident.
117. I note, here, that the prior medical history of the plaintiff was not put to the plaintiff, and he was not challenged about having the symptoms he now complained of prior to the transport accident. In Dr Wilde’s opinion, the plaintiff ought to have been examined by a psychiatrist or pain management specialist.^[74]
118. Dr Wilde was subsequently sent the video surveillance film of the plaintiff. After viewing the video surveillance film, Dr Wilde’s opinion was that he did not believe the plaintiff had an ongoing physical disability or impairment, and if he is restricted in any way, it is secondary to a pain syndrome with a psychological basis.^[75]

Dr Nigel Strauss, psychiatrist

119. Dr Strauss examined the plaintiff on 18 May 2021. In his examination, Dr Strauss noted:

“He was an extremely difficult man to interview and at times his behaviour was inappropriate. He would tell me about his problems with a smile on his face. He was extremely argumentative with the interpreter stating that he felt that the interpreter was not interpreting properly ... .”^[76]

120. In Dr Strauss’s opinion, it was difficult for him to arrive at a diagnosis. He noted that the plaintiff was depressed and agitated, but he recounted significant symptoms suggestive of psychotic process, and it may well be that he is suffering from a psychotic disorder.^[77]
121. In his first report, Dr Strauss found that the plaintiff was unable to work due to psychiatric factors.^[78]
122. In his later report dated 17 June 2021, Dr Strauss stated that it was possible that the plaintiff was manipulating his circumstances.^[79] In that report, Dr Strauss referred to the surveillance films and stated that the film showed inconsistencies in relation to the plaintiff’s presentation at interview, compared to his presentation in the surveillance footage.^[80] Dr Strauss finally stated:

“... I cannot reach absolute conclusions, and it is possible that this man is deliberately over-exaggerating his alleged longstanding problems caused by the motor vehicle accident that occurred in 2015.”^[81]

123. Dr Strauss finally saw the plaintiff on 6 October 2021. In the course of that examination, he discussed the surveillance material with the plaintiff. Dr Strauss described the exchange in the following manner:

“I discussed with ... [the plaintiff] the surveillance material and he stated that he has never been active and if he was active in the surveillance material it was because he took strong analgesia. I put it to him that he did not look as if he was under the influence of strong analgesia and he looked relaxed and happy particularly in the films of him being with his wife and eating. He argued quite laterally when I put these suggestions to him and he made little sense and I felt that his explanations were inadequate.”^[82]

124. Dr Strauss’s final opinion is as follows:

“This remains a difficult case. On the one hand ... [the plaintiff] states that he is virtually totally incapacitated and that he lives a very inactive life dependant upon his wife and treaters to help him. I noted that he is receiving extensive treatment.

I note that he has adopted the role of a semi invalid and has been receiving the Disability Support Pension and assistance from the NDIS.

On the other hand the surveillance footage that was made available to me suggests that there are times this man leads an active and reasonably happy life and obviously it is difficult to know exactly what are this man’s daily circumstances.”^[83]

125. Dr Strauss went to say:

“I believe that this man may suffer from symptoms of anxiety and depression and possibly psychologically based pain. However making a psychiatric diagnosis is extremely difficult when the veracity of the patient or individual is in doubt and I believe it is inappropriate to make a fixed diagnosis in a case like this under these circumstances.”^[84]

126. In summary, Dr Strauss does not accept the plaintiff as an accurate historian.

Psychiatric and psychological behavioural disturbance and disorder

127. In this proceeding, the plaintiff claims to have suffered a severe long-term mental or severe long-term behavioural disturbance or disorder as a result of the transport accident. The law in respect of this mental or behavioural disturbance injury application is that the consequences are to be “severe” in order to satisfy the test.
128. In this case, the opinion of the plaintiff’s treating psychiatrist classifies the plaintiff’s psychiatric difficulties to be moderate to severe. On the other hand, both Dr Epstein and Dr Strauss are unable to formulate a diagnosis due to their assessment of the plaintiff as being an unreliable and discredited historian. The plaintiff is prescribed three separate medications to deal with psychiatric and psychological conditions. He is also undergoing psychological treatment in combination with the psychiatrist’s treatment.
129. I am not satisfied that the plaintiff’s psychiatric or psychological disorders are to the extent of being severe as required under the Act.
130. I do accept, however, that the plaintiff’s reaction to the physical pain he suffers is a factor to be taken into account when considering the consequences of serious injury in respect to his physical injuries.

The injury to the Plaintiff’s spine, in particular the cervical and lumbar spine, as a result of the transport accident

131. The radiological examinations of the plaintiff that were carried out in the days after the transport accident clearly set out that there was a physical injury to the plaintiff, in particular, an undisplaced fracture at the C2 level in the plaintiff’s cervical spine. The plaintiff has consistently complained of pain to his neck, back and lower back since the time of the transport accident. The plaintiff has been treated long term for his physical injuries by various medical practitioners, the opinions of whom I have previously outlined in these reasons.
132. I accept the opinions of the plaintiff’s treating medical practitioners, Dr Mehr, Professor Bittar, Dr Rahimikia, the treating psychiatrist and Dr Kavianpour as stating the plaintiff has serious physical injuries which cause him to have, also, due to his pain, Depression and an Adjustment Disorder. Each of these doctors have seen the video surveillance film relied upon by the defendant to attack and discredit the plaintiff’s credibility. Each of those medical practitioners continue to support the plaintiff and accept the plaintiff’s symptoms and history as told to them.
133. I accept that the plaintiff is suffering the following consequences as a result of the transport accident:

Pain

134. The plaintiff complains of pain and has attended at numerous medical practitioners to have or obtain relief from his condition. He continues to take a large number of medications which are of significant pain-relieving capacity. The medication for pain relief has been consistent since he was first injured in the transport accident. The fact that the plaintiff requires to consistently take pain relief medication is a very considerable consequence.

Sleep

135. The plaintiff complains of his sleep patterns being interfered with as a result of the pain. The fact the plaintiff has interrupted sleep, leaving him without proper rest, is a very considerable consequence.

Work

136. The plaintiff is unable to work due to the injuries to him as a result of the transport accident. The injuries I refer to are specifically the aggravation of his cervical and lumbar spondylosis. Prior to the transport accident, the plaintiff was working three separate jobs. I accept the plaintiff is now unable to engage in any employment and he has the support of his treating medical practitioners in that regard. The fact that the plaintiff has gone from being a person fully active and able to provide for his family prior to the transport accident to someone who is now debilitated to the extent of being a disability support pensioner, is a very considerable consequence.

Ongoing medical treatment

137. I accept that the plaintiff has the need for ongoing medical treatment, both in regard to his physical suffering of pain and his secondary psychological problems as a result of it. The fact the plaintiff needs to attend upon medical practitioners, constantly and continually, is a very significant consequence for him.

Social/family relations

138. It is clear from the material in the Court Books that the plaintiff’s matrimonial situation has deteriorated as a result of him suffering from pain. The plaintiff’s wife prepared an affidavit, and she was not challenged. The plaintiff’s ability to engage with his family and be of some assistance in the care and provision of normal family services to his children have been destroyed as a result of the injuries received in the transport accident. This is a very considerable consequence.

Conclusion

139. I find that the plaintiff has failed to establish that his psychiatric and psychological condition resulting from the transport accident has satisfied the level of being “severe”, which is required under the Act.
140. On the basis of the medical evidence in this case, I do accept, on the evidence from the plaintiff and the medical opinion, that the plaintiff has satisfied the statutory test that the consequences arising from the physical injury to the plaintiff’s spine and, in particular, his cervical and lumbar spine, are “at least ‘very considerable’ and certainly more than ‘significant’ or ‘marked’”.
141. I order as follows:

(1) Leave is granted to the plaintiff pursuant to s93(17)(a) of the Act to bring proceedings for damages in respect of a physical injury to the plaintiff’s spine incurred as a result of a transport accident which occurred on 1 September 2015.

(2) The plaintiff’s application pursuant to s93(17)(c) of the Act to bring proceedings for psychological and psychiatric injury arising from the transport accident on 1 September 2015 is dismissed.

(3) I will hear the parties on costs.

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^[1] Richards & Anor v Wylie (2001) 1 VR 79

^[2] Mobilio v Balliotis [1998] 3 VR 833

^[3] Humphries and Anor v Poljak [1992] VicRp 58; [1992] 2 VR 129 at 140-1

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