Adeels Palace Pty Ltd v Moubarak [2020] WADC 99 | Case summary

[3]

In evidence, Mr Moyes said this was not accurate. He would not have said his entire back. He offered an explanation by saying that between one or two weeks before the consultation, he had a spasm in his back.[244] I do not accept this. Dr Pratsis would only note what she had been told by Mr Moyes.

Adeels Palace Pty Ltd v Moubarak [2020] WADC 99 | Case summary | Zoe

[46]

A review of Mr Moyes' bank records from 15 May 2013 to 15 April 2014[276] reveals that Mr Moyes was making regular PayPal transactions consistent with purchasing items online. In fact, there would appear to be a total of 207 PayPal transactions (about 17 transactions per month) accounting for purchases totalling $113,080.76.
A review of other records also suggests that Mr Moyes made 28 trips to places outside Bridgetown, including Manjimup. The Manjimup transactions are consistent with grocery shopping. These records also suggest that in addition to those 28 trips, there were 17 other trips outside Bridgetown to places like Bunbury, where it seems, given the entry in the bank records, he attended physiotherapy.
In the same period, Mr Moyes had another five trips for medical purposes, including trips to Perth.
These records therefore suggest that Mr Moyes made a total of 50 separate trips out of Bridgetown for medical and other reasons in this 11 month period. This equates to four trips per month, two of which, appear to be associated with the purchase of food and other items required for day to day living. Given the restrictions claimed by Mr Moyes, there is no explanation in the evidence for such shopping to have not taken place in Bridgetown. The remaining two trips per month appear to relate to medical appointments, including physiotherapy.
There are medical reports from this period including from Dr Majedi, Dr Pratsis, Dr Fairhurst and Dr Tannenbaum. They record information provided by Mr Moyes about his activities and capacities. There is also a report from Mr Glenn Ruscoe, a specialist musculoskeletal physiotherapist, and an individual plan from the Disability Services Commission. These reports paint a very grim picture of Mr Moyes' life indicating:
1. it was very difficult for him to perform his usual activities of daily living - getting in and out of bed, dressing and undressing, walking unaided in the house, garden and going to the shops;[277]
2. he was unable to perform domestic duties.[278] He would do things, such as vacuuming his bed instead of making it;[279]
3. he would spend 17 - 20 hours each day in bed;[280]
4. he had difficulty with organisation, paperwork, memory and concentration;[281]
5. he rarely, if ever, shopped;[282]
6. he was completely isolated and had only one friend, being an elderly lady with dementia. He had broken off most of his previous relationships;[283] and
7. he could not drive wearing a seatbelt because he could not turn to check his blind side. He struggled to drive for greater than 15 minutes at a time.[284]
This picture is inconsistent with a man who went to places outside his own town to do his grocery shopping twice a month and was making 17 online banking transactions a month. Further, Dr Tannenbaum reported that Mr Moyes drove himself from Bridgetown to Perth for his appointment on 17 April 2013.
In addition, Dr Tannenbaum's report dated 19 March 2014 recorded that Mr Moyes was 'eating very poorly' and 'hardly seems to eat properly'.[285] This is not necessarily consistent with the Disability Services Commission Individual plan of 27 March 2014[286] reporting that Mr Moyes was receiving meals on wheels three times per week.
Further to [489] above, the Donnybrook-Bridgetown Mail of 16 August 2012, reported Mr Moyes saying, with respect to Zinnecker House, that he intended to

[52]

In May 2015, Mr Moyes reported spending 16 - 20 hours per day in bed as set out above at [435]. Dr Pratsis however, did not find any evidence of what she expected if this was true, namely generalised muscle wasting.
During the period from June 2015 to August 2015, Mr Moyes was the subject of scrutiny by both medical practitioners and surveillance operatives.
As noted above, on 30 June 2015, Mr Moyes was examined by Dr Andrew Fairhurst, an occupational physician. During this consultation, Mr Moyes reported that:
1. he rarely walked outside his house;
2. he had a sitting tolerance of approximately half an hour;
3. standing was tolerable with movement;
4. he had a 5 kg lifting limit when undertaken at bench height;
5. his driving was impaired and he was only comfortable driving short distances;
6. he had ongoing difficulty with household responsibilities and was receiving assistance with washing, cooking, shopping, cleaning and walking his dog; and
7. he spent considerable time in bed - rising at midday and retiring at 7.00 pm.
In relation to the first and last of the above matters, I note that during the previous consultation on 24 January 2014 with Dr Fairhurst, Mr Moyes reported being able to walk for a maximum of 20 minutes and spending up to 20 hours per day in bed.
On 30 June 2015, Mr Moyes was also seen by Dr Tannenbaum. As part of his consultation, Mr Moyes was required to complete a questionnaire asking him to think back over the past 30 days and quantify the degree of difficulty he had with various activities. Mr Moyes reported:[288]
1. severe difficulty in concentrating on an activity for 10 minutes;
2. extreme difficulty with standing, or he could not stand, for long periods, such as 30 minutes;
3. severe difficulty getting out of his home;
4. moderate difficulty moving around inside his home;
5. severe difficulty standing up from a sitting position;
6. could not walk for long distances, such as a kilometre;
7. extreme difficulty washing his whole body;
8. moderate difficulty getting dressed;
9. moderate difficulty eating; and
10. could not do, or had severe difficulty taking care of, his household responsibilities, getting all that work done and doing it as quickly as needed.
Dr Tannenbaum documented that Mr Moyes told him that:[289]
1. going anywhere was agony;
2. he could not occupy himself doing any gardening;
3. he could not do any mechanical work;
4. he tried to spend time outdoors, but was anxious about slipping or falling and he considered it to be perilous;
5. he felt that moving or walking outside was hard or dangerous; and
6. he had persisting severe pain.
On 6 August 2015, at his home in Bridgetown, Mr Moyes was assessed by an occupational therapist, Ms Danielle Brennan, referred to above at [360] - [369]. The assessment took over 1 ½ hours. Mr Moyes lay in his bed throughout the consultation. Ms Brennan then walked around the property with Mr Moyes so she could observe his movements in and around the residence. During the course of her consultation, Mr Moyes informed her that:
1. he experienced discomfort when sitting for any period of time and would require a full day's bed rest following prolonged sitting;
2. he experienced discomfort during any period of standing still and needed to move when standing;
3. he could walk short distances of approximately 10 m at a slow pace;
4. on a 'good day', he got out of bed at approximately 1.30 pm and walked to the mailbox;
5. he could spend 10 - 15 minutes on his feet at a time;
6. he could ambulate up and down the six stairs outside his home at a slow pace with the support of the hand rail;
7. he could lift approximately 10 kg, provided it was at waist height;
8. he no longer drove a vehicle;
9. he had difficulty reaching things below waist height;
10. any activities involving squatting or trunk flexion caused pain;
11. he was unable to rotate his trunk due to restrictive movement and the high level of pain; and
12. he had minimal endurance and energy and was unable to complete tasks like washing dishes and preparing meals due to fatigue.
These three reports from Dr Fairhurst, Dr Tannenbaum and Ms Brennan covering the period from 30 June 2015 to 6 August 2015, paint the picture of a man who was, during that period of time, severely incapacitated with little meaningful activity in his life. This is consistent with the evidence of Mr Moyes at trial.
As it happens, Mr Moyes was the subject of four days' surveillance between 21 July 2015 and 24 July 2015 inclusive. The surveillance operative spent a total of 29 hours 35 minutes watching for Mr Moyes. A total of 1 hour 5 minutes and 35 seconds of footage was taken during which, Mr Moyes was sighted for 24 minutes and 32 seconds. At first blush, it appears that Mr Moyes' activity levels were consistent with his presentation to Dr Fairhurst, Dr Tannenbaum and Ms Brennan. However, a careful analysis of the surveillance footage suggests otherwise.
On 21 July 2015 surveillance was conducted for 8 hours from 7.05 am until 3.05 pm.
Mr Moyes was first sighted at 8.23 am, albeit the door to the property at his home in Roe Street opened at 8.13 am. This is consistent with him being up and about before this. When first seen, he appeared to be speaking on the telephone as he walked from his motor vehicle into his home.
Mr Moyes was not recorded again until 9.44 am when he walked outside wearing a headlight. Mr Moyes' evidence was that he wore this inside the house to find things and when he worked on his chainsaws. He was then recorded intermittently until 9.56 am, when he was seen to carry on a telephone conversation for some of the time whilst walking about, putting on gloves, carrying a chainsaw from inside his house to the car, bending to try to start a chainsaw which was on the ground, making 12 pulls on the chainsaw in quick succession, and returning the chainsaw to the house.
Throughout this footage, Mr Moyes was moving without any difficulty and certainly not differently from when he was seen in the earlier parts of the footage.
When next recorded at about 10.22 am, he walked to collect his mail. At 10.34 am, he prepared to leave home in his motor vehicle. He left at 10.37 am. In that three minute period, he negotiated, without difficulty, the six steps at the front of his house, on five different occasions. At 10.41 am, his motor vehicle was recorded parked at his Giblett Street property. Mr Moyes can then be made out, at about 10.49 am, operating his crane and unloading a trailer.
Mr Moyes was still doing this at 10.55 am. Mr Moyes did not appear in any film until 11.53 am, when he was seen back at Roe Street walking to his front door. The footage does not show when he returned to Roe Street, save to say there is vision of the Giblett Street property at 11.40 am and his motor vehicle cannot be seen, the crane was stationary and the trailer empty. Mr Moyes clearly completed this task before 11.40 am and returned home, although precisely when is unclear.
Having returned home, Mr Moyes next appeared to be loading items, including two chainsaws, into his vehicle in preparation for leaving his home. He must have left sometime after 12.09 pm, but before 12.36 pm, when he was seen arriving at the Giblett Street property. He then loaded items into the tray of his motor vehicle. His motor vehicle was still at the Giblett Street property at 12.45 pm. The surveillance footage does not record where Mr Moyes went after 12.45 pm or what he did.
There is then footage of the front of the Giblett Street property at 2.31 pm showing that the gate, which earlier had been open, was closed. Further, the trailer which earlier had been at the property, was gone and Mr Moyes' motor vehicle was nowhere to be seen. It was not at the Roe Street property at 2.35 pm. The surveillance concluded at 3.05 pm.
In footage from the morning of 22 July 2015, the trailer was shown to be back at Giblett Street and again full of equipment.
In my view, the surveillance footage clearly shows that on 21 July 2015, Mr Moyes was active prior to 9.44 am, although to what extent is not clear. However, he was continuously active for at least three hours from 9.44 am to 12.45 pm. How long he remained active is unclear. It was certainly until after 2.35 pm. The presence of the loaded trailer the next morning suggests it might have been at least long enough to load the trailer.
It is also clear from viewing the footage that over the time he was seen on 21 July 2015, Mr Moyes:
1. carried a number of chainsaws up and down the stairs of his home;
2. made 12 rapid and relatively consecutive pulls on a chainsaw which appeared to be on the ground;
3. negotiated the stairs at the front of his home about 28 times and only used the handrails on 12 of those occasions;
4. appeared to be engaged in telephone calls on three occasions;
5. operated a crane; and
6. carried a battery and a jerry can.
At no time in the footage did Mr Moyes appear to be hampered in his movements and at no time did he pause, as if hesitant, about any movements. He negotiated the stairs without difficulty and did so even without using the handrails as he claimed. None of his actions could be described as slow. But for his unusual gait, there did not appear to be anything about his actions or movements suggestive of pain or injury. Whilst it is true this could have been a 'good day', none of the descriptions Mr Moyes has given of a 'good day' suggested that he was ever capable of this level of sustained activity.
More consistent with Mr Moyes' evidence about his capacities is the surveillance conducted the following day, being 22 July 2015, when Mr Moyes was surveilled for 7 ¾ hours from 7.15 am until 3.00 pm. Activity was not recorded until 10.48 am, when the front door of his home was opened and dogs were seen. Mr Moyes was then glimpsed at 10.53 am opening the curtains. Between 11.32 am and 11.42 am, he was seen intermittently doing a variety of things, including collecting his mail, moving some items to get to others which he also moved, picking up a jerry can and two other containers and taking them to the tray of his motor vehicle and then returning to the inside of his house. He, or at least his headlight, was then seen at 12.54 pm approaching the front door, which was closed. At 12.59 pm, he walked outside wearing the headlight and work gloves. He went to his vehicle, retrieved a chainsaw from the front passenger seat and took it inside while he had a telephone wedged between his ear and shoulder. He appeared to be having a conversation. At 1.05 pm, the front door was closed by Mr Moyes and he was not recorded again before the surveillance ceased at 3.00 pm.
Mr Moyes was not seen to be particularly active on this day. This is not inconsistent with the generalised evidence that if he had an active day he suffered for it on the next day, in effect, being bedridden. However, his presentation when he was seen on 22 July 2015 does not show him to be suffering any ill effects from his activities the day before and he was not bedridden between at least 10.53 am and 1.05 pm.
It is interesting to note that the trailer at the Giblett Street property was loaded with items at 7.27 am on 22 July 2015, but empty when seen at 7.53 am on 23 July 2015. There is no explanation in the evidence as to when it was emptied or by whom.
On 23 July 2015, Mr Moyes was first recorded at 10.18 am. However, when seen, the garage door was up and he was moving about. It is not clear how long before this the garage door had been opened.
The footage clearly shows he remained active until 11.11 am. In this period, he assisted his dogs into the tray of his motor vehicle and went to the local petrol station. He put fuel into the vehicle and into a jerry can. He returned home and received a visitor who, at 11.04 am, left Roe Street with him. Mr Moyes drove them to Giblett Street. They left Giblett Street a short time later towing a trailer. Whilst there is no vision of Mr Moyes after this, it is clear that his motor vehicle was not at the Roe Street property at either 11.35 am or 1.32 pm. Neither it, nor the trailer, was at the Giblett Street property at 2.09 pm, when the surveillance ceased. It is clear that Mr Moyes was active from at least 10.18 am to 1.32 pm and likely later given that the trailer was shown to be back at Giblett Street the next morning at 8.14 am.
On Friday 24 July 2015, Mr Moyes was again not sighted until 10.44 am when his then carer, Joanne Williams, attended his property at Roe Street. Her vehicle was sighted at around 9.44 am, consistent with her oral testimony that she would arrive at around 9.00 am and work for three hours. Ms Williams' arrival was not recorded, albeit she was seen shortly prior to the first sighting of Mr Moyes. She was taking out his rubbish to the bin. The fact that she left at 12.41 pm, three hours after her car was sighted at 9.44 am confirms her three hour work period. Mr Moyes received a visitor at 11.17 am, who remained at the property for about 40 minutes. The visitor was seen to carry a bag into the property, which he did not have with him when he left. The manner in which they are seen to interact upon his departure does not suggest that this was anything other than a normal visit. Mr Moyes was then seen to be active in the period following this and was most active after Ms Williams left. In the period from about 12 noon to 1.22 pm, when Mr Moyes was seen to drive away from his residence into the Giblett Street property, Mr Moyes engaged in the following activities:
1. he carried three chainsaws to his motor vehicle;
2. he talked on the telephone;
3. he closed the roll-a-door without issue;
4. he loaded an esky onto his 4WD; and
5. he negotiated the stairs at the front of his property about 25 times within a 14 minute period, and only used the handrails on three occasions.
Finally, whilst the surveillance on Mr Moyes ceased at 2.40 pm, his vehicle was not back at his Roe Street home when vision of that home was recorded at 2.34 pm. This is consistent then with Mr Moyes being active over a period of more than 4 hours. How much longer is dependent upon when he returned home, which is unknown.
This surveillance suggests that Mr Moyes was active on each of these four consecutive days. On three of those days, he was active for greater than four consecutive hours. This analysis does not ignore the evidence of:
1. Craig Dillon that Mr Moyes would take pills when out with him in the forest, or Serg Melotti that he took a painkiller in later years: see below at [555.4] and [556.6]; and
2. Stan Bolton that Mr Moyes lay down on a mattress for 30 - 45 minutes after operating a crane for 5 minutes: see below at [552].
The evidence of Messrs Dillon and Bolton is of course inconsistent with Serg Melotti's evidence, who made no mention of this mattress or resting: see below at [556].
Further, the footage itself reveals a period of sustained activity, even accepting that when away from home, Mr Moyes may take rests. It is however, clear that on two of the three days when Mr Moyes was active, he was alone.
There is a day when there was obviously much less activity. This is consistent with his evidence that he had periods of inactivity. However, he accepted in evidence that, throughout this period, he would spend 1 - 1 ½ hours each day on the internet. Further, he admitted engaging in activities relating to chainsaws. Mr Moyes' bank records indicate that he sold some chainsaw parts and/or chainsaws within a month of this activity. Mr Moyes confirmed these sales in his evidence.[290]
The video footage of this one period, in July 2015, whilst not necessarily demonstrating that Mr Moyes had the same capacity as he had prior to his fall, is certainly inconsistent with the picture painted by him to the health care professionals whom he saw shortly prior to, and after, this period as set out above. There is nothing either in Mr Moyes' evidence or in any other material which suggests this level of activity was even possible.

[63]

It is also apparent that whilst Mr Moyes consistently told healthcare professionals he was spending vast periods of time each day unable, and disinclined, to engage in any forms of activity or interactions, he brought an extraordinary amount of property to his Roe Street address after January 2012.
Witnesses familiar with Mr Moyes' property prior to January 2012, described his workshop and living area as being neat and tidy. Further, the workshop was described as having large pieces of old saw milling equipment which Mr Moyes had used on occasion prior to January 2012. These required significant space.
However, those witnesses who have seen Mr Moyes' property since January 2012 described it very differently and in terms consistent with the video footage made of the premises on 30 September 2017.[298] This recording shows the premises to have been in a disorganised, poor state of repair and the cleanliness left much to be desired. In respect of the latter, dog hair and faeces were evident within the living areas. The kitchen sink and benchtop areas were unclean. Further, the oral evidence suggested the sheets on Mr Moyes' bed could go unwashed for up to a month, during which time he would bathe infrequently and eat and sleep in the bed, with his dogs, and often with his boots on.
First, the state of cleanliness, as opposed to disorganisation, is difficult to reconcile with the considerable domestic help Mr Moyes was receiving. The lack of cleanliness nonetheless suggests a level of dysfunction.
Secondly, the video footage shows that the workshop area was so full that it appeared to be almost impossible to walk around inside it. Items were stacked on shelves which appear to fill the workshop. These are no doubt the items that Mr Moyes acquired since January 2012. Mr Moyes accepted he had bought things online. Mr Serg Melotti described Mr Moyes' habit of shopping on eBay as 'shocking' and 'an addiction'.[299] Mr Moyes himself admitted that he purchased between 150 - 250 chainsaws[300] in addition to any chainsaw parts he may have bought. There is however, no proper explanation in the evidence about how these items came to be at the premises and in their respective positions, whether they were delivered to Mr Moyes or collected by him and who put them on the various shelves and benches and floor.
Mr Moyes said in evidence that his cousin Billy Hack and Mr Melotti helped put up some shelving, but that was all.[301]
In addition to all the material which can be seen in the recording, Mr Moyes also admitted in evidence that the white sea container, seen in the footage of 30 September 2017, which replaced the red sea container, seen in earlier surveillance footage and which Mr Moyes said he sold to Bob Ashley, was delivered to the property about a year earlier,[302] so in 2016. He admitted he had items stored in it including shelving, chainsaws and chainsaw parts, a printer, some televisions, some bags, surplus crockery and the like. He admitted putting some of the items in there, although he also said that, on occasions, his carers helped him to do this.[303]
The arrival and storage of this vast quantity of material is inconsistent with Mr Moyes' claim to his medical practitioners that he was in effect laid up in bed for between 16 and 22 hours a day doing nothing, that he was not engaging in any activities, not interacting with people and not pursuing any interests. This is so even accepting that these items have been accumulated over a period of five years from 2012 to trial.

[65]

Mr Moyes repeatedly told medical practitioners that he is not able to do any work of substance. Nonetheless, in evidence he admitted to performing various tasks.
First, he admitted that, on a number of occasions, he assisted Mr Stan Bolton and/or Mr Bob Ashley by performing lifts with his crane. These were described as tasks of short duration. He assisted Mr Bolton on five or six days over a two week period for 2 - 3 hours on each day. He said that during this 2 - 3 hour period, he would lay down between lifts when preparation works were being undertaken.[305] Mr Bolton did recall an occasion when Mr Moyes helped him out during the construction of a shed by operating his crane. He did not give details about the number of hours or days, save that Mr Moyes operated the crane only for the duration of the lift - a period of about 5 minutes. He would then lie on a mattress for 30 - 45 minutes, whilst the next load was prepared.[306]
Mr Moyes also had to remove some of his property from an unidentified location because of government pressure. He gave conflicting information about this. First, he suggested it took place in 2015 and Craig Dillon helped him.[307] Mr Dillon did not give any evidence about this. The surveillance footage from July 2015 shows a trailer at the Giblett Street property which is variously full and empty. Then, he said that most of it was moved in the first year after the injury.[308] Craig Dillon could not have helped him then because he did not start visiting Mr Moyes until late 2013 or early 2014.[309]
There is also evidence that Mr Moyes was going into the forest and cutting and collecting firewood. He either went alone or with Mr Dillon or with Mr Melotti.
Mr Dillon did not give details as to the number of times this occurred, but he said, it occurred when he lived with Mr Moyes in 2015 and when it did happen:
1. Mr Dillon carried the chainsaws;
2. Mr Moyes cut wood for a time before saying 'that's enough'. He would then lie down for 10 - 20 minutes;
3. Mr Moyes would try to help load the wood. He would pick it up and drop it into the back of the ute; and
4. he would see Mr Moyes take pills during these outings.[310]
Mr Melotti also confirmed he had been out cutting firewood with Mr Moyes. This began 1 - 1 ½ years after the fall. His evidence was that they would go into the forest in winter and fill the tray of the ute with wood. It would take about three hours. He was asked about the frequency of this and he said this:
1. in 2013, they did this fortnightly;[311]
2. in 2014/2015, Mr Moyes could cope better than 'now' ie at trial (2018);[312]
3. in a week in November 2015, they went twice;[313]
4. in winter 2016 over a four month period, they went 'around 20 times';[314]
5. in 2017, they went less because Mr Moyes 'couldn't do it as much';[315] and
6. at least in the later years, Mr Moyes did use a painkiller.[316]
Importantly, Mr Moyes did not disclose to any medical professional that he was engaging in these activities.
Since the fall, Mr Moyes has been engaged in the following activities:
1. collecting, repairing and selling chainsaws and chainsaw parts. On his own admission, he commenced this approximately two years after the fall at the beginning of 2014, 'give or take six months'.[317] In his evidence, he said he would work for 20 - 30 minutes at a time, rest and then work for a further 30 minutes or so up to 60 minutes a day;
2. collecting mechanical tools. He did this for the first year or year and a half after the fall;[318]
3. walking in the forest;[319]
4. shopping with an elderly lady, Sofka. He also did her cooking and visited her;[320]
5. Pilates and physiotherapy. In the period from 4 May 2012 to May 2013, he had 98 physiotherapy visits being an average of eight sessions per month. From June 2013 to June of 2014, he had 33 physiotherapy visits, being an average of three sessions per month;
6. efforts to save Zinnecker House as detailed above;
7. some experimenting with different fuels to understand octane ratings for solvents as part of his chainsaw hobby;
8. agisting horses on his Giblett Street property from the end of 2015;
9. engaging in collecting and selling firewood. In evidence, he admitted the following:[321]

[75]

erecting shelving at least some of which was done with Mr Melotti and on one occasion with his cousin Billy Hack;[327]
cutting his dog's hair;[328]
pursuing a legal claim against a truck driver whose truck crashed into his house. This required him to attend lawyers, Young and Young, in Bunbury. He received a $30,000 payout;[329]
spraying weeds on his 4 acres of land from time to time. This involved using a 5 litre container. He would have to pressurise the container and then carry it in one hand whilst spraying the weeds with the other. He would do one or two containers before stopping. He claimed this took 20 minutes because one container could be emptied in 10 minutes 'if the pressure was there';[330]
planting trees with Craig Dillon. They planted 30 - 40 pencil pines, one fig tree and some others, including Jarrah and Acacia trees;[331]
surfing the internet daily for 1 - 1 ½ hours;[332]
speaking on the telephone to a friend in America three to four times per week in about 2014;[333]
making 12 - 13 telephone calls per day during the period from 1 December 2016 to 31 March 2017 and spending an average of 2 hours 40 minutes per day on the telephone;
making an average of seven telephone calls a day in May 2017 and spending nearly an hour and a half per day on the telephone;
making purchases to a total value of $33,759.79 in the four-month period from 15 December 2013 to 15 April 2014. There were approximately 12 PayPal transactions per month and an average of 1 - 2 trips to places outside Bridgetown every month;
purchasing items to the value of $201,766 in the period from 23 August 2014 to 24 January 2017, as shown by his Commonwealth Bank Diamond Awards credit card statements. Many of the transactions were made using PayPal. By way of example, in the three month period commencing 24 August 2014, there were 122 PayPal transactions. For completeness, in this same three month period, Mr Moyes' expenditure was $41,728. The PayPal transactions do not account for this entire expenditure. Mr Moyes accepted he used PayPal for purchasing items online. This amount of money reflects a significant investment of both time and money; and
receiving substantial sums of money from undisclosed sources and arranging to access money from his superannuation funds on multiple occasions.

[76]

At trial, Mr Moyes led evidence from a number of witnesses who have had contact with him for various period since January 2012. Some had known him before the fall and some only met him after the fall. Some only saw him a limited number of times, like an old school friend and two former colleagues. Others, like three women who were his carers at different times and his friend who stayed with him for about six months, saw him regularly for a sustained period. Finally, there were three men who were long term friends who visited on a semi-regular basis.
Each of these witnesses gave evidence as to their observations of Mr Moyes at different times. They invariably described a man who frequently spoke either of his significant pain and/or the limitations on his capacities because of his condition. They described his dishevelled and unkempt appearance, his apparent struggles to move and perform tasks, and the unkempt nature of his home and properties.
The submission was made by senior counsel for Mr Moyes that this consistent presentation to those who had regular or ongoing contact with Mr Moyes over time militated against any finding that Mr Moyes' pain and incapacities were not genuine. It was inconceivable that Mr Moyes could have so comprehensively duped those around him as to his incapacities for the 5 - 6 years between the fall and trial. Even were this submission without flaws, this evidence does not rehabilitate Mr Moyes credibility nor assist me in determining the central issue as to the cause of any incapacity.
It is correct that these witnesses gave evidence of seeing behaviours consistent with incapacity apparently driven by pain. However, it is also clear that Mr Moyes spoke to each witness regularly about his pain and his limited capacities. In the case of some, these conversations took place in regular telephone calls or emails or during scheduled visits, as was the case with carers.
It was evident in the way each witness gave evidence that they had been influenced by what they had been told by Mr Moyes. For example, they spoke about him 'paying for' any sustained activity that he had undertaken by being in bed for days afterwards. Many could not have known this from their own knowledge. Others acknowledged that it was Mr Moyes' report of pain or incapacity that informed their views.[334] Mr Moyes' use of medication and his various attendances at medical appointments would, no doubt, for these witnesses, have been consistent with his claims of pain and incapacity.
Further, in each case the witness was predisposed to accept Mr Moyes as accurate. In the case of those who knew him before, this was because of their prior relationship and, in the case of others, it was because they were employed to care for him. Further, as is evident from his relationship with Dr Dewing and his behaviours when in prison, Mr Moyes seeks to manipulate people and situations to ensure his preferences and/or his desired outcome are met.
In the case of the witnesses Gareth Thomas, Paul Michael, Stanley Bolton, Robert Ashley and Serg Melotti, only Mr Melotti had any regular personal contact with Mr Moyes from the time of the fall. Mr Thomas and Mr Michael were not Bridgetown residents. Mr Thomas saw him once in November 2012 and this was during the period when Mr Moyes was prescribed Lyrica, the known side-effects of which are discussed below at [588], include incoordination, drowsiness and possibly suicidal ideation.
With the exception of Mr Thomas, Mr Michael, Mr Bolton, Mr Ashley and Mr Melotti, the other witnesses had no dealings with Mr Moyes until after late 2013. By this time, Mr Moyes had been diagnosed with severe depression and was experiencing a number of psychosocial factors. Further, with the exception of Mr Dillon, the visits by others were scheduled and Mr Moyes would be expecting their visits.
Further, as to those witnesses who saw Mr Moyes over a protracted period of time, it was apparent that they all experienced difficulty separating their recent experiences of Mr Moyes from that which they experienced many years before. This was particularly the case in the evidence of Mr Bolton and Mr Ashley who have had more contact with Mr Moyes in more recent years. There was a degree of confabulation.
It was also apparent at times that the witness' evidence was not consistent with objective materials. For example, Ms Williams' experience was that Mr Moyes could not walk easily up and down the stairs[335] and would 'normally groan or complain'[336] when bending to pick up something. However, surveillance during her tenure as his carer, from November 2014 and July 2015 shows Mr Moyes readily walking up and down the stairs and bending to pick up items, assisting dogs into his truck and on one occasion, attempting to start a chainsaw.
Finally, the one witness who had ongoing regular contact with Mr Moyes throughout the time after his fall was Mr Melotti whose evidence was that there was only 'some change'[337] or 'little change'[338] in Mr Moyes in the 3, 6, 8 months after the fall.[339] There was little change in the condition of his home in the first 2 - 3 years after the fall.[340] This evidence is inconsistent with Mr Moyes' own evidence of his condition at this same time.
As I have said, this evidence does not rehabilitate Mr Moyes' credibility insofar as the events following the fall are concerned, the injuries he sustained, and his activities thereafter. It does not assist me to resolve any issues regarding any causal link between any injury sustained in the fall and the depressive condition or his condition generally. It does not persuade me that I should reconsider any of my findings.

[89]

On 15 April 2013, Dr Tannenbaum first saw Mr Moyes in a clinical setting. He based his diagnosis on the following materials:
1. the letter of referral from Dr Dewing;
2. self-reporting inventories completed by Mr Moyes prior to the examination;
3. observations made of Mr Moyes before and during the consultation; and
4. the clinical interview.
The letter of referral was not tendered at trial, so its contents are not known, save to say that the referral was made on the 14 March 2013. This was 14 months after the fall. In that time, Mr Moyes had been receiving treatment from Dr Dewing, Dr Stock, Dr Majedi, a naturopath, a masseuse, a physiotherapist and an exercise physiologist.
From a pharmacological perspective, Mr Moyes had been taking Endone and other oxycodone based medications since the 13 April 2012. He had been placed on a Lyrica trial on 27 September 2012, but by December 2012, it was clear that Mr Moyes was having an adverse reaction to Lyrica and that trial ceased. The known side effects of Lyrica include drowsiness, motor incoordination and cognitive impairment. There is also support in the literature for the view that it increases suicidal ideation.[348] Mr Moyes claimed to be experiencing at least some of these side effects.
On 8 March 2013 and prior to first consulting Dr Tannenbaum, Mr Moyes had also been assessed by Dr Pratsis under the WorkCover Guide for a permanent impairment. She then expressed the opinion that the prognosis for complete recovery was good. This opinion, and its foundation, is set out in a report which was sent directly to Mr Moyes given he commissioned that report.[349] A copy of this report was not provided to Dr Tannenbaum.
Also, on 17 December 2012, and prior to first consulting Dr Tannenbaum, Mr Moyes had seen Dr Majedi, a specialist in pain medicine. Dr Majedi also considered the prognosis was positive. Dr Majedi explained this, in some detail, to Mr Moyes. In particular, he explained that the pain was not sinister and that with appropriate rehabilitation, Mr Moyes would make slow gradual progress. There was no reason why he would not make a full recovery. This opinion was set out in a report sent to Dr Dewing and copied to Mr Moyes.[350] Again, Dr Tannenbaum did not receive a copy of this report.
Dr Majedi also saw Mr Moyes on 15 April 2013. Dr Majedi noted some improvements but, for the first time, he recommended that Mr Moyes receive psychological counselling.[351] There was no change of prognosis documented by Dr Majedi.
Notwithstanding Mr Moyes' extensive treatment to date, Dr Tannenbaum was only aware of the medications prescribed and of the involvement of a pain specialist. He necessarily relied on Mr Moyes for the factual and medical history of his condition as set out below at [598]. Given what he subsequently wrote, Dr Tannenbaum was not aware of the positive prognosis.
Dr Tannenbaum's assessment of Mr Moyes included watching him from his window when he arrived. He observed Mr Moyes struggle to both exit his truck and with the parking meter. He estimated it took about four times as long as most people to get into his rooms and complete the paperwork. This meant that there was a substantial delay in Dr Tannenbaum seeing him, thereby reducing the time for the clinical interview. In addition, Mr Moyes exhibited significant discomfort and sat askew during that interview.
The paperwork provided to Mr Moyes for completion by him included four self-reporting inventories which asked a series of questions about his psychological symptoms within specified timeframes being 'in the last 7 days' or 'over the last four weeks'.
Dr Tannenbaum was one of the co-developers of three of the inventories completed by Mr Moyes. These were the Sentiens Mental Health Screener, the Life Events Assessment Scale and Depression Severity Scale. The fourth was a Depression Anxiety Stress Scale (DASS).[352]
Dr Tannenbaum considers such forms to be a useful adjunct to his clinical assessment. The questionnaires address all relevant areas, thereby ensuring relevant matters are not missed because of the time constraints. They identify the areas of particular concern, allowing him to concentrate on these areas. He also believes they give him the capacity to measure consistency of response over time.
Mr Moyes did not complete all of the questions on one of these forms, but of the questions he did answer on each form, he almost invariably scored himself at the high end of the scale consistent with severe depression, anxiety and stress. Further, he told a deliberate lie, in at least one respect. On the Sentiens Life Events Assessment Scale, he indicated that he had never had difficulties with the law or had had to go to court.[353]
Finally, Mr Moyes provided information in the clinical interview, including the following:
1. his fall involved slipping, falling and landing on a sharp steel bar that broke a bone and crushed a nerve. There was a 'big snapping sound';
2. he realised the severity of his fall at that time. The pain was immediate and got worse over the course of a few weeks;
3. he was pushed to immediately return to work by his employer, who was not concerned about Mr Moyes, even though the employer was aware he had suffered a very severe injury;
4. he was fortunate to not be in a wheelchair;
5. he started to feel depressed soon after the fall;
6. he became irritable and was struggling;
7. if there was an easy way to kill himself, he would do it immediately;
8. he lies down for the entire day (15 - 18 hours per day) and does a minimal amount to survive;
9. the injury affected his relationships;
10. he did not engage in any social activity;
11. he does not maintain his usual hygiene and washing and he could not clean his house; and
12. he struggles to drive.

[91]

Mr Moyes also impressed Dr Tannenbaum as not having 'terribly good' memory and concentration, as being 'highly dysfunctional' and as being the type of man 'who is not terribly aware of his feelings, and the pain dominated everything.'[354]
Based on all this information, Dr Tannenbaum, concluded that Mr Moyes was experiencing an extreme level of depression and anxiety with associated suicidal ideation. The depression was directly related to the fall and commenced as soon as one would expect as set out above at [577]. He prescribed Cymbalta and Amitriptyline.
Following this initial consultation, Dr Tannenbaum saw Mr Moyes on a clinical basis on seven other occasions, being 5 August 2013, 2 September 2013, 8 October 2013, 19 March 2014, 18 June 2014, 18 September 2014 and 16 March 2015.
The consultation on the 19 March 2014 was motivated by the need to have a report so Mr Moyes could pursue a common law claim, although Dr Tannenbaum used it for clinical purposes as well.
After March 2015, Dr Tannenbaum saw Mr Moyes on three further occasions for the preparation of medico legal reports. These dates were 30 June 2015, 15 August 2017 and 31 August 2017.
Mr Moyes was scheduled to see Dr Tannenbaum in May 2013, but he cancelled this appointment and did not attend another appointment until 5 August 2013. He was very late for this appointment. At this time, Mr Moyes had problems taking new medication and had ceased taking Cymbalta, on the recommendation of a pharmacist. This, he said, made him 'worse'. This was a matter of some frustration to Dr Tannenbaum, who reinstated the Cymbalta, with instructions to increase it slowly.
At the next appointment on 2 September 2013, Mr Moyes was still 'battling to live with the pain',[355] but his mood had been improving. He was at that time living quietly with his dogs and a friend, most likely Craig Dillon. It seems Mr Moyes suggested he was going to have a spinal block, saying he was a 'prime candidate'[356] for a spinal stimulator.
On 8 October 2013, Dr Tannenbaum noted that Mr Moyes had 'improved quite a lot',[357] but there was some residual depression. Notwithstanding this improvement, Mr Moyes continued to describe pain and maintained that it was hard to do anything in the house. He showered every two weeks and bathed once a week. It was at this point that Dr Tannenbaum prescribed a second antidepressant and recommended that Mr Moyes might benefit from seeing a psychologist.
Dr Tannenbaum did not see Mr Moyes again until 19 March 2014, when Mr Moyes was entirely preoccupied with obtaining a report so he could lodge the paperwork to secure rights to pursue his common law claim. Those rights expired that day. Irrespective of this, Dr Tannenbaum used this appointment to review and treat him clinically.
On this occasion, Dr Tannenbaum confirmed his diagnosis of severe major depression, commencing soon after the fall. He concluded that it was highly complicated by the severity of his pain and lack of remission of his pain symptoms. The prognosis, in view of the severity of Mr Moyes' pain, was bleak.[358]
This diagnosis and assessment, like all the others, was based solely on Mr Moyes' self-reporting and included the completion by him of the self-reporting inventories. On this occasion, Dr Tannenbaum was informed by Mr Moyes that:
1. he did virtually nothing, spending 20 hours a day lying down or sleeping;
2. his personal hygiene was extremely limited;
3. he saw only one person socially, being an elderly woman with dementia;
4. he very rarely, if ever, shopped;
5. he was eating very poorly and, since Christmas, had only cooked for himself twice;
6. he had great difficulty with memory and concentration; and
7. his day to day functional capacity was extremely limited.
Dr Tannenbaum also completed the Permanent Impairment Rating System (PIRS) form in order to provide a whole person impairment for workers' compensation purposes. He considered that the degree of whole person permanent impairment was 57%. In reaching this assessment, he assessed Mr Moyes as not having any chance of being employed in the future. He considered him to be severely impaired in the areas of self-care, social and recreational activities, travel, social functioning, concentration, persistence and pace.
When making these attributions, Dr Tannenbaum understood that an example of a severe impairment in the area of self-care was someone who needed[359]

[101]

Subsequently at trial, Dr Tannenbaum expressed the view that Mr Moyes had consistently demonstrated he suffered severe major depression over time, as evidenced by the self-reporting inventories he completed, including on 30 June 2015 and 15 August 2017. A final set was completed on 31 August 2017. Dr Tannenbaum was impressed by the consistency of Mr Moyes' responses in these inventories over time. He considered it was a measure of his credibility.
As is evident, there was a two year gap between the consultations on 30 June 2015 and 15 August 2017. In relation to his consultations in 2017, Mr Moyes continued to present himself as having extreme pain and struggling with day to day activities, including getting out of bed, travelling, and attending to the activities of daily living. It was during this consultation that Mr Moyes, for the first time, informed Dr Tannenbaum that:
1. he collected and fixed chainsaws, although he found it hard to start them;
2. he had desperately tried to garden and was able to push himself to do so daily for a year, but it became too much;
3. the nurse who had lived with him for a time had moved out, because she could not stand to see him in pain;
4. he tanked himself up on narcotic analgesia so that he could push himself to do things outside and to do his hobby;[366]
5. he could do something for an hour or two a day;
6. the medication he took did give him some normality;
7. he spent compulsively on chainsaws and parts;
8. he used to be outside a lot;
9. he fed horses every few days and was paid to look after them; and
10. he was able to place a gear box on his truck using a crane.
It is clear that at the time of this consultation, Dr Tannenbaum discussed with Mr Moyes the surveillance footage taken of him at various times between October 2014 and June 2017. In fact, Dr Tannenbaum recorded that Mr Moyes informed him that there had been long periods of surveillance.[367] The additional information about activities provided by Mr Moyes at this time as set out above therefore needs to be considered in the context that this surveillance had by then been revealed to Mr Moyes and Dr Tannenbaum, prior to the commencement of this trial.
Having viewed the surveillance footage, Dr Tannenbaum, both in his report of 22 August 2017 and subsequently in his evidence, expressed the view that the surveillance footage did not affect his opinion about the level of impairment or make him re-evaluate his diagnosis. His reasons for this were:
1. pain medications can have a dramatic effect. Medication makes people feel euphoric, which emboldens them to undertake activities they ordinarily could not do and perhaps should not do, but subsequently, they suffer for their exuberance;[368]
2. Mr Moyes had told him from the earliest stages he had the ability to undertake activities for somewhere between 20 - 60 minutes daily;[369] and
3. the surveillance footage was misleading because:

[126]

It will now be self-evident that almost every aspect of this paragraph is factually wrong. Further, use of the adjectives 'horrific' and 'severe', to describe the fall and the injury demonstrates the extent to which Dr Tannenbaum was misled. This was a 'fall' or a 'slip' as recorded in the medic's notes with minimal injury to Mr Moyes after which, he was able to get up, walk and work, albeit on light duties, without any real cause for concern thereafter, as evidenced by Mr Moyes later looking for alternative work on other oil rigs.
At his first consultation with Dr Tannenbaum, Mr Moyes gave the clear impression that he did 'the minimum to survive', claiming he did not engage in any social activity and lay down for the entire day (15 - 18 hours). He did not tell Dr Tannenbaum that, from at least August 2012 to November 2013, he was president of the group involved in the campaign to save Zinnecker House, that he attended monthly meetings, had interviews with the media, addressed the council and participated in street stalls and the like. Mr Moyes was then doing more than 'the minimum to survive'.
At least up to and including 30 June 2015, Mr Moyes repeatedly asserted that the only person he socialised with was the 'elderly lady with dementia'. This was not true. From the evidence detailed above at [559] - [569], Mr Moyes had more friends than the 'elderly lady with dementia'. He socialised with a number of friends throughout the period of 2012 - 2015 and in some cases, beyond this to 2017.
Further, Mr Moyes certainly did not, at any time, tell Dr Tannenbaum that he had met and formed an intimate relationship with a woman who then came to live with him for a period of time. Instead, Mr Moyes told him that he met a 'remote nurse' who came to care for him, but, he said, she eventually left because she could not stand to see him in pain. Although they were one and the same person, the impression given by Mr Moyes was very different to the true position of the relationship: see above at [369] and [558.12].
Next, Dr Tannenbaum was not given any information about the types of activities Mr Moyes engaged in or the extent of his engagement. Again, these are set out above at [552] - [558] inclusive. The video surveillance also recorded that he drove alone: see below at [676].
Mr Melotti, who was spending time with Mr Moyes both before and after the fall, gave evidence that:
1. he noticed very little change in him in 2012;[380]
2. Mr Moyes had a 'shocking' eBay habit buying chainsaws, and before that, tools. Whilst he believed Mr Moyes had sold more chainsaws than he bought,[381] he also believed Mr Moyes bought about 100 chainsaws and reconditioned 20 or 30 of them;[382] and
3. until about 2016, Mr Moyes would work on his chainsaws in the workshop keeping his tools in a very organised manner.[383]
I acknowledge that the evidence of Craig Dillon and Joanne Williams painted a somewhat different picture. Both, however did not have contact with Mr Moyes until late 2013 and mid-2014 respectively. By this time, Mr Moyes was entrenched in his claim for workers' compensation.
Further, Mr Moyes did not give Dr Tannenbaum any or any meaningful information about his passion for chainsaws and what level of activity and engagement that entailed.
Mr Moyes admitted in evidence that he had 150 - 200 chainsaws at his home in October 2017.[384] Given that he did not develop his interest in chainsaws until after the fall, these or at least, most of them, could only have come to his premises sometime after January 2012. It is also clear he had been buying and selling chainsaw parts. The purchase of this number of chainsaws and the parts represents a substantial investment of time and effort particularly when they likely represent a selection from a much greater pool of machinery and other items available online to Mr Moyes.
The acquisition of these chainsaws and parts necessitated the purchase and erection of shelving, some of which Serge Melotti and Billy Hack helped erect.[385] Mr Moyes also purchased a sea container, so that chainsaws and other items could be stored in it.[386]
The extent of these activities is borne out by the number and value of the transactions shown on Mr Moyes' bank records in combination with the length of time his telephone records reveal he spent on the phone each day. However, only a limited number of Mr Moyes' bank and telephone records were made available. The full extent of Mr Moyes' banking activities and his telephone engagement is not therefore known, but to the extent that the records are available, they are indicative of extensive overall activities and engagement.
At least some of the surveillance footage also revealed activity levels inconsistent with anything Mr Moyes told Dr Tannenbaum. I have referred to this at [318] - [321] inclusive and [329].
It is also clear that Mr Moyes did not disclose his prior depression as detailed above at [274].
The provision of inaccurate or misleading information, or at least exaggeration, continued. In September 2013, Mr Moyes suggested to Dr Tannenbaum he was going to have a spinal block, as he was a 'prime candidate' for a spinal stimulator. To this time, the only reference to a spinal stimulator appeared in the report of Dr Majedi dated 5 August 2013. In that report Dr Majedi said:[387]

[136]

I have significant reservations about a number of aspects of Dr Tannenbaum's opinion in light of all the material before me, including his evidence at trial.
First, Dr Tannenbaum placed reliance on the consistency of the self-reporting inventories as a measure of Mr Moyes' credibility. Consistency does not equate credibility, being truthfulness, accuracy and reliabiilty. In this case, Mr Moyes completed these forms by invariably assessing himself at the upper end of seriousness for matters relating to anxiety and depression. This degree of consistency is capable of being achieved by means other than by accurately responding to the questions asked. It can be achieved by adopting a practice of invariably selecting the most serious option. This would, at the very least, be consistent with what others have referred to as Mr Moyes' proclivity for 'catastrophising'.
Secondly, there is no evidence about any enquiries made by Dr Tannenbaum to critically test answers given by Mr Moyes.
The language used by Dr Tannenbaum in his earliest reports indicated that he accepted at face value all that Mr Moyes told him. More significant is that the language he used in his reports gave the clear impression he adopted Mr Moyes' sense of grievance at being unjustly treated by ENSCO.
The lack of information provided to Dr Tannenbaum about the true circumstances of the factors taking place in Mr Moyes' life in and around the time of the fall, including the fall itself and the prognosis for his recovery are, in my view, significant.
The most telling manifestation of this was Dr Tannenbaum's opinion that Mr Moyes' depression was a primary condition, which is, it had its onset at or near the time of the fall. This opinion was expressed after his very first consultation and was based entirely on information provided by Mr Moyes. Whilst senior counsel for Mr Moyes conceded that this aspect of Dr Tannenbaum's evidence was not pressed, and a finding about this is not required, the existence of this opinion is not only relevant, but important. This opinion evidences Dr Tannenbaum's comprehensive acceptance of what he was told by Mr Moyes from which he then drew conclusions without any independent verification. I do not criticise Dr Tannenbaum for this given that he was consulted by Mr Moyes in a clinical setting.
Prior to giving evidence, Dr Tannenbaum became aware of other matters which he considered supported his opinion namely:[391]
1. Mr Moyes' recollection of his telephone conversation with Dr Dewing when he was told of the suspected fracture. However, I have not accepted Mr Moyes' recollection as to the way in which he claimed Dr Dewing communicated this information.
2. The notation in the insurer's records dated 5 April 2012, documenting that Mr Moyes had complained about 'feeling a little bit down'.
3. The notation in the insurer's records dated 18 April 2012, documenting that Mr Moyes wanted home care as he was struggling to manage his household chores and this was 'wearing on him mentally'.
4. The notation in the insurer's records dated 21 September 2012, documenting that Mr Moyes was finding it difficult to cope, was worried he would never get better and wanted to have surgery.
Dr Tannenbaum does not appear to have given any consideration as to whether the matters noted by the insurer were within the realm of normal human experience. As Dr Terace said in evidence, there is a difference between a mood disturbance, which is in the realm of normal mental experience, and the development of a psychiatric disorder. A person who suffers an injury of some kind would, he said, be expected to suffer at least some disruption to their mood, but this did not necessarily make it a mood disorder or disease. It is normal to feel down when experiencing pain or having been told about sad or difficult things.[392]
In addition, Dr Tannenbaum did not know about other matters going on in Mr Moyes' life in the time around the fall and up to the time of his first consultation, including:
1. he was outraged and angry because, in his mind, he was being unjustifiably blacklisted by ENSCO which was impervious to his considerable efforts to prevent it;[393]
2. he was experiencing desperate financial stresses;[394]
3. he was experiencing interpersonal stresses because a dog belonging to his 'ladyfriend'/bookkeeper/employee, who was a 'huge supporter' of his, had been run over by another of Mr Moyes' employees;[395] and
4. he was heading up a group trying to save Zinnecker House.

[148]

For the purpose of preparing his medico-legal report in December 2014, Dr Terace was provided with a considerable amount of material. It appears to be all of the medical reports from the various doctors and other associated fields, including physiotherapists and exercise physiologists, and other medical records, including reports regarding investigations and treatments given by reason of the fall. After the consultation, Dr Terace was provided with additional materials relating to Mr Moyes' email communications with GRN between 4 December 2011 and 13 February 2012, together with information about Mr Moyes' involvement with Zinnecker House. Dr Terace was not provided with any surveillance materials.
Mr Moyes also brought some materials with him to his appointment with Dr Terace. He brought Dr Tannenbaum's report dated 19 March 2014, together with his assessment of permanent whole person impairment and his workers' compensation AMS forms 5 and 6 and the specialist musculoskeletal physiotherapist Glenn Ruscoe's report dated 2 September 2013. All of these materials had already been provided by ENSCO's lawyer. I note that all the materials provided by Mr Moyes unequivocally supported a view that his level of disability was significant and his prognosis poor.
Dr Terace has a standard approach to consultations. He does not read any associated documentation until after he has spoken with the patient. First, the factual, medical and legal history is taken and secondly, impressions are formed before reading the any materials.
After completing this process, Dr Terace diagnosed a major depressive episode of moderate severity, which was not primary. He qualified his opinion as set out above at [683].
First, it is clear that Mr Moyes was not accurate and truthful with Dr Terace.
As to Mr Moyes' past history, he first told Dr Terace that he had never suffered from a psychiatric or psychological condition.[401] This is inconsistent with Dr Dewing's evidence that Mr Moyes was seriously depressed for two years after a motor vehicle crash in which his girlfriend was killed, as referred to above at [274]. Further, he did not tell Dr Terace that he had been off work for a couple of years as a result of grieving for his girlfriend.[402]
Secondly, whilst Mr Moyes told Dr Terace about his restless leg syndrome, it does not appear given what is written he told Dr Terace he had been using Tramadol/Zydol for this condition from about 2007. To the contrary, Dr Terace was left with the impression that the restless leg syndrome was 'unrelated to medication'.[403]
Thirdly, whilst Mr Moyes told Dr Terace about the MRI he had in late 2011 on his lumbar spine, he did not inform him of the issues he had had with his lumbar spine in 2001 and 2005. Further, he told Dr Terace that he was prescribed Tramadol in December 2011 for that condition which had, in any event, resolved within 2 - 3 months of his work accident. He did not however mention the knee injury which he also suffered around the same time.
Dr Terace expressed his opinion that the restless leg syndrome, the precise nature of which was unclear to him, likely represented some form of chronic anxiety disorder in accordance with his history, signifying that Mr Moyes was already predisposed to the development or contraction of a new psychiatric condition.[404]
Fourthly, Dr Terace appears to have specifically asked Mr Moyes about major life events and stresses in the last five years. Mr Moyes identified only two events, namely the breakdown of his last relationship which he said occurred three months after the date of the injury in January 2012, and the death of his dog 12 months prior to the examination by Dr Terace. Mr Moyes failed to tell Dr Terace about his blacklisting and loss of employment with ENSCO.
As to the fall, Mr Moyes told Dr Terace he slipped on spilled polymer and became airborne falling 1 m onto his mid-thoracic spine whereupon he heard a cracking sound. He experienced acute mid-back discomfort. He reported the incident to his supervisor, but continued to work initially until the end of his shift.
Insofar as any physical injuries were concerned Dr Terace relied on the materials provided to him.
Insofar as any information provided by Mr Moyes about the onset of any psychological symptoms Dr Terace reported[405]

[156]

Further, there appear to have been some significant embellishments and understatements by Mr Moyes regarding his post fall socializing, namely:
1. Mr Moyes said he had a carer 5 days per week when in fact, as Mr Moyes himself accepted in evidence, the carer only came 2 - 3 days per week;
2. from a social perspective, Mr Moyes said he only had one visitor 2 - 3 times per week when in fact, Craig Dillon was visiting for periods of time and/or was living there and others I have already mentioned also visited, although less often. There was also no mention of outings to the forest to exercise the dogs or to cut firewood;
3. Mr Moyes said he 'rises from bed' at 11.00 am when, on 5 out of the 10 days when surveillance was conducted in November and December 2014, which included the morning, he was seen doing things between 8.00 am - 9.00 am; and
4. his Zinnecker House activities.
Further, Dr Terace did not consider Mr Moyes' major depressive disorder was primary because it did not manifest itself within weeks of the fall. Here, it is pertinent to recall Dr Majedi's evidence that, for a disc protusion, there should have been 'immediate pain', or that it might 'take a few days to ramp up', or 'a week': see above at [289]. Unlike Dr Tannenbaum, Dr Terace considered that any expressions of low mood by Mr Moyes in early 2012 were within the realm of normal human experience.
Given the material available as to Mr Moyes' mood and his activities in the weeks and months after the fall and for the reasons which follow, I accept Dr Terace's opinion that the depressive disorder is not primary.
In his first report, Dr Terace also offered his opinion that abnormal illness behaviour was suggested in Mr Moyes' case but, he said there was, at that time, insufficient evidence to declare it to be definitive. He opined that the matter required further review and opinions should be sought from experts in physical medicine, such as a consultant occupational physician and a consultant rheumatologist.[408]
This opinion, together with Dr Terace's subsequent opinion expressed after he had seen the surveillance footage, was the subject of extensive cross-examination over four days by senior counsel for Mr Moyes.
The thrust of the cross-examination was that by raising abnormal illness behaviour, Dr Terace demonstrated bias. It was submitted that as a consequence, he had not critically and impartially analysed the materials before him, in particular, the surveillance footage, such that any opinion as to the presence of abnormal illness behaviour, and in particular 'malingering', which is conscious abnormal illness behaviour, was without merit.
It was also submitted that, in any event, any allegation of malingering needed to be pleaded by ENSCO, or at the very least, that that issue needed to be squarely put to Mr Moyes in cross-examination. An allegation of malingering is more than a matter of exaggeration of symptoms, but rather, an absence of the symptoms reported for the purpose of making a claim. This, it was submitted, had not been done and this evidence could not now be admitted. I do not agree.
It is true that Mr Moyes was never asked directly if he was malingering, or if in fact, he was exaggerating his symptoms or disabilities for the purpose of this claim. It can be confidently assumed that, given his other evidence, had he been asked either of these things, then he would have denied them.
Mr Moyes was however, challenged at length about his capacities and activities over time. He was particularly cross-examined about the fact that he had not accurately represented his capacities and activities to all the doctors he had seen, that is, he had been doing more than he revealed. It was suggested he was exaggerating his disability and did not require the assistance he had been receiving. When considered as a whole, and in the context that he was initially receiving WorkCover payments and subsequently actively pursuing a common law claim, the clear intent of this line of questioning was to suggest that he was not being truthful in order to make out this claim.
I consider that Mr Moyes was given every opportunity to answer this allegation, no matter what name it might be given. In addition, a number of the other witnesses, including Dr Tannenbaum were either shown or told about activities undertaken by Mr Moyes and given an opportunity to comment upon them. The extent to which this was done varied. It would have been preferable for it to have been more fulsome in some instances, however the opportunity for witnesses to comment upon matters touching malingering was adequate.
Further, Dr Terace's reports were provided to Mr Moyes and it was clear his evidence was to be relied on by ENSCO. Mr Moyes could have been in no doubt that the issue of malingering was to be raised for consideration by the court. I am satisfied then that the issue is properly before me.
Returning then to Dr Terace's evidence as regards abnormal illness behaviour, he explained his reasons for considering this issue, in his first report saying:[409]

[161]

In November 2016, Dr Terace was provided with additional materials including:
1. two reports from Dr Low, consultant occupational physician dated 31 July and 8 October 2016 respectively; and
2. surveillance footage captured in March, April and May 2016.
Dr Low's first report related to his examination of Mr Moyes on 27 July 2016. Dr Low's findings on attempted clinical examination were consistent with significant non-organic/non-physical contribution to his presentation of pain and disability. Further, the findings were inconsistent with the expected natural progression of the physical injuries described by Mr Moyes and having regard to the MRI and CT scans. Dr Low's diagnosis was that Mr Moyes no longer suffered from a physical injury to his back caused by the fall and his presentation of pain and disability were related to psychosocial issues. There was no objective information from a physical point of view which would prevent him from returning to work.[411]
Dr Low's second report related to his consideration of the surveillance footage from March, April and May 2016. In his view, the footage was inconsistent with the findings on attempted clinical examination. At the consultation on the 27 July 2016, Mr Moyes demonstrated minimal movement in the back on standing, was unable to fold his arms across his chest when seated and would not do so when leaning against the edge of the examination table. On the footage, he could be seen walking without issue, lifting, twisting, bending, standing and leaning against the railing of the stairs. The surveillance footage reinforced Dr Low's opinion that there was no objective information from a physical point of view as to why Mr Moyes would not be able to return to all forms of employment.[412]
Having viewed the footage and read Dr Low's reports, Dr Terace felt compelled to revise a substantial part of his diagnosis, prognosis and opinion. In his opinion, subject to caveats explained below, he considered there was sufficient evidence to find a definitive diagnosis of abnormal illness behaviour and sufficient to argue that such illness behaviour was probably conscious and therefore, malingering. The caveats on his opinion related to:[413]
1. Dr Low's opinion about the surveillance footage being definitive and being in accordance with the consensus of the medical opinion.

[165]

Dr Terace was subsequently shown earlier surveillance footage from 2014 and 2015. He again reviewed Mr Moyes on the 9 August 2017.
In effect, Dr Terace's opinion did not change significantly, although it is necessary to read his multiple reports as a whole. Dr Terace's approach to his reports is idiosyncratic in that he responded to individual correspondence and considered only the material referred to in that correspondence, even when he had received further correspondence with further material.
In this case, Dr Terace's approach meant that when he examined Mr Moyes on 9 August 2017, he did not read any materials other than the letter of instructions. Further, when preparing his report, he only then reviewed his original report of 30 December 2014, a report from Dr Pratsis dated 23 January 2017, a report of Dr Low dated 12 August 2017 and a Disability Services report dated 18 April 2017. On the basis of these materials, he gave these opinions:[414]
1. Accepting the history and validity of the presentation, Mr Moyes suffered a major depressive disorder of mild to moderate severity. In evidence, Dr Terace clarified this by saying he believed it was closer to moderate severity. The condition was also, reactive in nature, in that Mr Moyes had the capacity to enjoy human experiences, for example to discuss his dogs and travel.
2. If the opinion of Dr Low is considered definitive, as it accords the consensus or preponderance of medical opinion, then one needed to consider whether Mr Moyes' complaints of pain entered the realm of abnormal illness behaviour.
3. If any abnormal illness behaviour was conscious, then there was support for malingering or fabrication of symptoms.
4. In regard then to the credibility and reliability of Mr Moyes, as a historian, as to his own perceived impairment incapacity and disability, his self-assessment is significant.
In a subsequent report, after reviewing all of his previous reports including those in which the surveillance footage was considered, Dr Terace, in effect, repeated his concerns about Mr Moyes' credibility given what he considered to be the apparent inconsistencies between Mr Moyes' own accounts of his impairment and what could be observed in the footage. He reiterated his opinion as regards the presence of abnormal illness behaviour and the possibility that it was conscious and that therefore, Mr Moyes was malingering.[415]
At trial, Dr Terace's review of the surveillance footage was challenged. It was put that the footage only represented a small portion of the total surveillance conducted and was not representative of Mr Moyes' capacities or condition. Dr Terace acknowledged that he had not been provided with the information about the total number of hours that Mr Moyes was under surveillance. He acknowledged that this information was significant, given that one of the qualifications to his opinion was that the footage needed to be representative of Mr Moyes' capacities.[416]
Further, it was suggested that Dr Majedi, Dr Salmon and Dr Pratsis had identified a physical origin for the pain being neuropathic or nociplastic, as Dr Majedi said in his letter to Dr Dewing dated 19 December 2012:[417]

[177]

Dr Tannenbaum's diagnosis of primary depression was largely based upon information provided to him by Mr Moyes. He accepted that information. Further, Dr Terace's diagnosis of a secondary depression was also conditional upon the acceptance and validity of Mr Moyes' presentation: see above at [583].
Dr Terace's view was clearly that if Mr Moyes' psychiatric condition is to be compensable, it needed to be a response to the limitations placed upon him by his pain by reason of a physical injury, which in this case, is from the fall. Dr Tannenbaum's opinion is entirely consistent with this in that he went so far as to say there would be no lasting change in Mr Moyes' psychiatric condition of a primary depression until the physical pain he experienced is resolved.
The diagnosis of depression relies upon the veracity of the patient's history, including the occurrence of injury, any ongoing physical symptoms and any psychological symptoms. In this case, the pain management specialists and the psychiatrists have been informed of factual matters by Mr Moyes. By and large, the medicos have accepted his information. However, unlike the medicos, I am required to determine the truth of the information provided by Mr Moyes in an adversarial setting, on the balance of probabilities.
I am satisfied that Mr Moyes was not truthful, accurate and reliable about the forceful nature of his fall, and the injury, pain and limitations arising from that fall, and about many of the other matters as set out above. I cannot accept his evidence.
I am not satisfied that Mr Moyes has suffered a fracture of T8. Nor has he suffered a prolapsed disc of T7/T8. Further, he has not suffered a sensorial disturbance of nerves.
I cannot be satisfied that Mr Moyes has a physical basis for his claimed nociplastic pain. Further, I cannot be satisfied that he developed a psychiatric condition from any injury resulting from his fall, including nociplastic pain. It follows that Mr Moyes has not proved a compensable psychiatric condition.
Even if Mr Moyes was predisposed to the development of a psychiatric condition by reason of some prior chronic anxiety disorder, in accordance with his history as set out above at [692], and that he suffered a mood disturbance within the realm of normal human experience at some unknown time after he last ceased looking for work in March 2012, it does not follow that any present psychiatric illness is causally linked to Mr Moyes' fall.

Adeels Palace Pty Ltd v Moubarak

At a glance

Court

Decision date

Source

Judgment (219 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (14)

MOYES -v- ENSCO AUSTRALIA PTY LTD [2020] WADC 99 (3 July 2020)