Kanja v Dynamic Engineering Construction Co Pty Ltd [2007] VSCA 307

Kanja v Dynamic Engineering Construction Co Pty Ltd [2007] VSCA 307 - VSCA 2007 case summary — Zoe

[58]

45 Mr Moran saw the appellant on 15 June 2001 for the purposes of providing a report for the appellant's solicitors. The appellant had provided the history of lifting a concrete finishing machine in January 1996 and incurring a sharp pain in the right side of his neck and the next day finding that his neck was stuck in one position with pain on the left hand side which radiated down his thoracic spine. On the occasion of Mr Moran's examination of the appellant on 15 June 2001 the appellant complained of constant neck pain which radiated down between his shoulder blades with pain in both shoulders. He stated that his neck movements were restricted and that he experienced migraines. Examination of the cervical spine revealed that flexion was to 30 degrees, extension to 45 degrees, right and left lateral flexion reached to 45 degrees, rotation to the right was 60 degrees with rotation to the left being 80 degrees. Mr Moran expressed the opinion that the appellant had aggravated disc degeneration in his cervical lumbar spine. He said that provided the appellant engaged in only light duty employment work not involving repeated lifting and heavy lifting, and work in which he did not have to constantly flex or rotate his neck then his prognosis 'should be good'. He stated that the appellant's 'employment was a significant contributing factor to the development of the claimed injuries'. He stated that the past treatment regime provided to the appellant had been 'reasonable' and that his 'employment is still a contributing factor to the claimed injuries'. By a further report dated 30 September 2002 dealing with an examination of the appellant that day, Mr Moran said that the appellant had 'aggravated disc degeneration in his cervical and lumbar spine'. He was fit for only light duty employment. Mr Moran saw the appellant again on 2 June 2003. Once again Mr Moran expressed the opinion that the appellant had 'aggravated disc degeneration in his cervical and lumbar spine'. However on this occasion he reported that it was not 'possible to say whether [the appellant's] pre-existing asymptomatic degenerative disease would or would not become symptomatic.' He said his 'partial incapacity for employment may be related to his employment with [the respondent]'. He provided no explanation for his change of position from the earlier two occasions of his examination of the appellant.

[68]

55 Film was taken again of the appellant on 20 June 2000, which was the second occasion upon which Mr Marshall examined him. The film showed him travelling to the same building as he had on 25 June 1998. The appellant was seen standing outside the building for approximately 12 minutes, looking left and right up and down the street. He flexed his head forward to look at his mobile phone on several occasions. There were two occasions when he appeared to rub the left side of his neck with his right hand, which matter was brought to the attention of the jury by counsel for the respondent. The appellant then departed in the company of a woman and was filmed looking sharply to his right. It commenced to rain and the appellant appeared to have no trouble in holding what appeared to be a packet of x-rays over his head with both arms. He was filmed looking sharply to the left and to the right before entering the driver's seat of a Ford car. He was observed to drive the car to his home and alight and to carry a bag and his coat in his left arm. He was then filmed driving a four wheel drive vehicle to a service station, filling it with fuel, entering the shop and making payment. In an easy motion, he was seen to run to his car, enter it and drive to a shopping centre. He alighted and entered the shopping centre. As he did so he looked sharply to his right. He was then filmed in the shopping centre bending forward and flexing his neck forward to look at items on lower shelves. He was filmed returning to his car and entering it. As he reversed out of the car park, the jury would be entitled to have concluded that the film showed him to quickly and fully rotate his head to both the left and the right. He was later filmed squatting down in a gutter with his head in the floor well of the passenger seat of his four wheel drive vehicle. This activity continued for some minutes. Subsequently the appellant attended at a poker machine venue where he sat and played on a poker machine for a considerable period of time, approaching one hour. It was open to the jury to conclude that no restriction of his neck was observed at any time in the film taken this day. Film was taken of the appellant the next day, apparently outside his home after which he was attending at a shopping centre. He was seen to run at a fast pace across the road before entering his car, again without any apparent restriction. The jury were entitled, in my view, to consider that the film taken on 20 June 2000 was inconsistent with the statements made that day to Dr Marshall that the appellant was unable to raise his left arm, and that 'Everything is stiff'.

[84]

67 In my view, looking at the whole of the evidence, the jury verdict is consistent with a view that as a result of the injury sustained on 12 January 1996, the appellant suffered an acute soft tissue injury, which for a period of time caused him some disability and incapacity to engage in work as concreter. The jury were entitled to accept Mr Marshall's evidence that the appellant's complaints of pain and restriction of movements were diffuse and exaggerated. They were entitled to accept the evidence of Mr Marshall that as at June 1998 the appellant suffered from no neurological, muscular or joint deficit in the shoulder neck or back, and that the only losses in range of movement of the appellant were subjective in nature. This evidence was similar to that of the neurologist, Dr Kempster, to whom the appellant had been referred in October 1997. Dr Kempster could find no neurological abnormality. He concluded that the appellant had a 'minor musculoskeletal injury', which had triggered a 'post-traumatic regional pain syndrome associated with depression'. It was open to the jury to conclude that any physical injury suffered by the appellant was relatively minor and musculoskeletal only. In my view, the jury were entitled to conclude that the failure of the appellant to seek any medical treatment during the period between 20 January and 21 September 1996 supported such a conclusion. As to the psychiatric response to such an injury, the evidence before the jury was that Dr Epstein, who had examined the appellant on two occasions, considered the appellant to have suffered a 'mild adjustment disorder with depressed mood'. Dr Epstein, unlike Dr Conron and Dr Walton, was not given any history of the unhappy litigation in which the appellant had been involved during 1996. In my view, the jury were entitled to accept the evidence of Dr Walton that as at May 1997, the primary cause of the depression suffered by the appellant was his financial circumstances, which related to the 'unfortunate outcome' of the litigation in which the appellant was involved during 1996.

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