Opoku v P & M Quality Smallgoods P/ L & others Opoku v Kaybron No 6 P/L - [2012] NSWSC 478 - NSWSC 2012 case summary — Zoe

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Opoku v P & M Quality Smallgoods P/ L & others Opoku v Kaybron No 6 P/L

[2012] NSWSC 478

Supreme Court of NSW|2012-04-30|Before: Quality Smallgoods P, Adamson J

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At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2012-04-30

Before

Quality Smallgoods P, Adamson J

Catchwords

240 CLR 1 - Kondis v State Transport Authority [1984] HCA 61
154 CLR 672 - TNT Australia Limited v Christie [2003] NSWCA 47
65 NSWLR 1 - Andar Transport Pty Limited v Brambles Limited [2004] HCA 28
221 CLR 234 - Bankstown Foundry Pty Limited v Braistina [1986] HCA 20

Source

Original judgment source is linked above.

Catchwords

240 CLR 1 - Kondis v State Transport Authority [1984] HCA 61154 CLR 672 - TNT Australia Limited v Christie [2003] NSWCA 4765 NSWLR 1 - Andar Transport Pty Limited v Brambles Limited [2004] HCA 28221 CLR 234 - Bankstown Foundry Pty Limited v Braistina [1986] HCA 20160 CLR 301 - Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 3459 ALJR 492 - Bostik Australia Pty Limited v. Liddiard [2009] NSWCA 167 - Ramsay v Watson [1961] HCA 65108 CLR 642 - Paric v John Holland [1985] HCA 582009/333604

Judgment (38 paragraphs)

[1]

Judgment 1Kofi Opoku, who was born on 14 June 1960 in Ghana, claims damages for personal injuries he sustained on 1 May 2004 when he was working as a cleaner in the boning room of a meat processing factory. 2The plaintiff has commenced two sets of proceedings relating to the same events against five separate defendants. The proceedings were heard together. The first set of proceedings were brought against P & M Quality Smallgoods Pty Limited (P & M), Kaybron No. 15 Pty Limited (Kaybron 15), Kaybron No. 16 Pty Limited (Kaybron 16) and the trustees of the Homebush Unit Trust (HUT). The second set of proceedings was brought against Kaybron No. 6 Pty Limited (Kaybron 6). Kaybron 15 and Kaybron 16 were deregistered and proceedings were discontinued against them. Kaybron 6 was deregistered and the pleadings were amended to substitute the Nominal Insurer by its agent QBE Workers Compensation (NSW) Pty Limited (QBE). 3QBE has cross-claimed against P & M and HUT for indemnity pursuant to s 151Z(1)(d) of the Workers Compensation Act 1987. QBE has cross-claimed against the plaintiff in respect of payments made to the plaintiff pursuant to s 151Z(1)(b) of that Act.

[3]

The arrangements made by P & M for its workforce 5P & M conducted a business of producing and selling processed meats, which it operated from premises and plant which it owned at 18 Hume Highway, Chullora. 6Up until about 2003, P & M employed all the staff engaged in its operations. In about 2003 it decided to arrange for another entity, HUT, to employ its supervisory and managerial staff, while P & M itself continued to employ the processing and cleaning staff. The purpose of this was, according to George Ujvary, who was then the Chief Financial Officer of P & M, to reduce its workers' compensation premiums. The workers' compensation premiums were higher for workers engaged in processing meats because of the relatively higher dangers associated with their work, as compared with supervisory and office staff. 7In 2004, P & M decided to minimise its workers' compensation premiums still further by dividing its workforce into smaller groups of workers so that thresholds pertaining to payroll in the calculation of workers' compensation premiums were not exceeded. To that end, it caused some 40 companies to be incorporated, each with the name Kaybron and a numeral, to distinguish each company from the others. Each of the Kaybron companies would employ a group of workers. It is accepted that the plaintiff was employed by Kaybron 6. 8None of the Kaybron companies had a bank account or employed anyone in a supervisory or managerial capacity. Kaybron 6 did employ persons who were senior to the plaintiff but junior to HUT supervisors as either team leaders, such as Charles McCarthy, and leading hands, including Eric Osei-Bowadu and George Salloum. 9Such persons had limited power to give directions to cleaners, such as the plaintiff. Group Certificates issued to such workers were issued in the name of the Kaybron company, the payments by Kaybron companies were journal entries only, the funds for the actual payments being provided by P & M. The workers who supervised the Kaybron workers were employed by HUT, although as referred to above Kaybron 6 employed a Team Leader who had limited supervisory duties. 10By 2004, P & M had no employees. Each of the 1,100 persons who had formerly been employed by it were now employed either by HUT, in the case of managerial or supervisory employees, or by a Kaybron company in the case of manual workers such as boners and cleaners. 11Throughout this period P & M, HUT and the Kaybron companies had common directors: Paul Lederer and John Hunt. 12The relevant legislation was amended on 1 July 2007 to take away the incentive for the structure adopted by P & M. In July 2010, as a result of the amendments, P & M reverted to the original situation and re-employed all of the workers engaged in its operations. All of the Kaybron companies were then deregistered, the reason for their existence having ceased. 13As at the date of the accident, 1 May 2004, the plaintiff's Group Certificates were issued in the name of Kaybron 6. 14Answers to interrogatories administered to P & M establish the following: (1)P & M occupies the entire factory premises and owns the conveyor against which the plaintiff says that he fell, resulting in his injuries; (2)Kaybron 6 was responsible for cleaning the conveyor at the end of the production shift; and (3)Kaybron 6 occupies the area in relation to cleaning systems for the conveyor and the boning room in which it is situated. 15The plaintiff alleges that Kaybron 6 was his employer. No other party alleges that the plaintiff was employed by anyone other than Kaybron 6. Kaybron 6 admits that it was the plaintiff's employer.

[5]

The circumstances of the accident 18The plaintiff was about to finish his night shift on 30 April/1 May 2004. He was standing near the conveyor belt when he noticed a piece of meat on the conveyor. He endeavoured to dislodge the piece of meat with water from the hose. However, as he did so, he slipped on the floor and the fourth finger of his left, non-dominant, hand was injured when it became caught at the junction between the conveyor belt and one of the rods supporting the conveyor apparatus. His co-worker, Mr Osei-Bowadu, a leading hand who was passing the area, came to assist him. The plaintiff's finger was bleeding profusely. Mr Osei-Bowadu took him to a separate room, reported the incident to Sasa McCarthy, the plaintiff's Team Leader, who was also assisted by one of his sons. The incident was also reported to Mr Newman, the factory manager. Mr Osei-Bowadu then drove the plaintiff to Bankstown hospital for treatment. 19Mr Osei-Bowadu's recollection was that he saw the plaintiff squatting beside the conveyor belt before he called to say that he had injured himself. I do not consider that it matters whether the plaintiff was sitting or crouching beside the conveyor belt, in light of my findings below. 20The plaintiff was cross-examined by reference to various statements, including a report of injury, which he had signed, which gave a somewhat, but not entirely, different version of how the accident happened. Although I have reservations about the plaintiff's credibility in so far as it affects his evidence of pain and incapacity, I accept that his hand came into contact with the conveyor belt while it was moving and while he was hosing it. I reject the suggestion that the plaintiff was attempting to dislodge a piece of meat from the conveyor with his hand. I am satisfied on the balance of probabilities that his hand came into contact with the conveyor because the plaintiff slipped, either when he was standing or when he was crouching. The contact was accidental and not deliberate. Any differences between the plaintiff's oral evidence and statements he has signed which were not interpreted are explicable on the basis that he is not particularly literate in English. 21I accept that the plaintiff's command of English has improved since the date of the accident and the time when the incident report form was completed. The improvements have come about in part by the fact that he lives in Dubbo with his girlfriend, with whom he speaks English and he has done a TAFE course in Dubbo to learn basic English and computer skills.

[6]

After the accident 22The plaintiff was seen at 4.05 am and treated at the Emergency Department of Bankstown hospital. An X-ray of his left fourth finger revealed an undisplaced fracture through the tuft of the distal phalanx but no other bony injury. His finger was sutured with nine stitches. He was discharged to be reviewed by his general practitioner for removal of the stitches in ten days. The plaintiff was driven home by a friend. 23About ten days after the accident, the stitches were removed by Dr Ghulam Sachawars, a general practitioner. The cut opened up again and had to be dressed. Dr Sachawars referred the plaintiff to Dr Simon McKechnie, a neurosurgeon, who saw him on 5 June 2004. Pain relief was prescribed. 24Dr Sachawars also referred the plaintiff to a hand surgeon, Dr James Masson, who saw him in July 2004. Dr Masson did not consider surgery to be indicated. In his report of 21 July 2004 he opined: "...I can see no reason why he could not be back at work at least in some capacity if not his normal capacity as it has been over two months since his injury." 25Dr Masson reviewed the plaintiff on 23 August 2004. He reported to Dr Sachawars in the following terms: "Mr Opoku has had some improvement in his sensitivity with the use of Opsite. I have explained to Mr. Opoku that he can always expect to have some discomfort in this finger due to his nerve injury but I do not believe that surgery has any place in his management. I think that Mr. Opoku should return to work on normal duties." 26The plaintiff's employment was terminated on 16 September 2004 by letter on the letterhead of P & M, under the hand of a Human Resources Manager who was apparently employed by P & M. There is no reference in this document to Kaybron 6. 27Later in 2004, the plaintiff consulted Dr Guirguis, who since that time has regularly provided medical certificates certifying his unfitness for work. The plaintiff has continued to consult Dr Guirguis, who practises from Lidcombe, every six weeks or so notwithstanding that the plaintiff has been living in Dubbo for some years. 28The plaintiff has consulted medical practitioners of various specialties both for reassessment and medicolegal assessment. He was referred for medicolegal assessment to Dr Paul Curtin, a plastic surgeon, who opined in a report dated 4 October 2005: "I am unable to account for the extreme symptoms of sensitivity displayed by this man. Even in cases where there is known injury to the digital nerve, it is always possible to carry out a gentle examination to locate the area of maximum sensitivity. Although only a visual examination was possible, nevertheless there was no clear evidence of any injury to his digital nerve. One would also normally expect to find a degree of permanent stiffness in an affected part that was apparently excluded from normal use. There was no evidence of any such stiffness in this case. I would not recommend amputation of his injured left ring finger. Such an operation would result in division of both digital nerves and the likelihood of deterioration in his symptoms. It seems likely there are strong psychological issues involved here, and I believe that any surgical intervention on this mans [sic] finger would be unwise." 29The plaintiff has not attempted to obtain any employment, whether remunerative or otherwise, at any time since the accident. He tried to return to work at P & M about three months after the accident but found that he was unable to continue. He has received workers' compensation payments since the date of the accident. 30The plaintiff was a passenger in a motor vehicle accident in July 2006 which caused him to suffer an injury to his neck which troubled him for a short period of time and from which he recovered. 31The plaintiff subsequently moved to Dubbo because of the lower cost of living. He presently lives with his girlfriend, Sizakuhle Ndlovu.

[8]

Whether Kaybron 6 owed a duty of care to the plaintiff and the content of that duty 32As appears from the narrative above concerning the various defendants, P & M was, prior to the change in its arrangements in 2004, the plaintiff's employer. P & M, as the plaintiff's former employer, owed him a non-delegable duty of care for so long as it was the plaintiff's employer. In 2004, P & M arranged for the plaintiff to be employed by Kaybron 6. Kaybron 6 did not employ supervisors or managers and it did not have a bank account or resources of its own. Accordingly, by design, it was neither in a position to discharge any duties of care to the plaintiff, nor to remunerate him from its own resources. However, in light of the pleadings, and the facts that Kaybron 6 paid the plaintiff's remuneration during the relevant period and appeared on the pay slips and group certificates, I find that Kaybron 6 was the plaintiff's employer. 33As the plaintiff's employer, Kaybron 6 owed a non-delegable duty to the plaintiff to take reasonable care, and to ensure that reasonable care was taken, to provide him with a safe place of work, a safe system of work and safe plant and equipment: Leighton Contractors Pty Limited v Fox [2009] HCA 35; 240 CLR 1, Kondis v State Transport Authority [1984] HCA 61; 154 CLR 672 and TNT Australia Limited v Christie [2003] NSWCA 47; 65 NSWLR 1. 34Kaybron 6 submitted that it had a "bare non-delegable duty" and had "no opportunity to change the workplace or system of work". It is not clear what is meant by the word "bare" in that context. That Kaybron 6 had no present capacity to discharge its duty to its employees does not lessen the duty it owed. As the plurality (Gleeson CJ, Gummow, Hayne, and Heydon JJ) said in Andar Transport Pty Limited v Brambles Limited [2004] HCA 28; 217 CLR 424 at [34]: "[T]he duty is imposed upon all employers, however the business be formed or structured. As Lord Wright noted in Wilsons and Clyde Coal Co Ltd v English: [T]he whole course of authority consistently recognizes a duty which rests on the employer and which is personal to the employer, to take reasonable care for the safety of his workmen, whether the employer be an individual, a firm, or a company, and whether or not the employer takes any share in the conduct of the operations." [Emphasis added] 35I do not need to consider the operation of the Civil Liability Act 2002, apart from s 5Q, since civil liability for compensation under the Workers Compensation Act is excluded from its operation: Civil Liability Act s 5A(2) and s 3B(1)(g). Section 5Q provides that where an employer entrusts another with the task of providing the employee with the place and/or system of work, and/or with plant and equipment the employer will generally be vicariously liable for failure by that other person to exercise reasonable care in those matters. 36It was submitted by Kaybron 6 that s 5Q does not apply because Kaybron 6 did not in fact entrust some aspect of the work to P & M or HUT when it was, if anything, the reverse since P & M allocated its employees to the Kaybron companies. I reject this submission. Although the evidence establishes the development of the arrangement which applied at the time of the plaintiff's accident in 2004, the plaintiff was, in fact and law, employed by Kaybron 6 at that time, which accordingly owed him a duty to provide him with a safe system of work. It can be inferred from Kaybron 6's lack of capacity to do anything to affect the safe system of work (since it had no employees with authority to do so, and no means to effect such changes) that it delegated, or purported to delegate, its duty to provide a safe system of work to P & M and HUT. For these reasons I consider that s 5Q does apply in the instant case to make Kaybron 6 vicariously liable for breaches by P & M and HUT.

[9]

Whether P & M owed a duty of care to the plaintiff and the content of that duty 37P & M relied on Unilever Australia Limited v Pahi [2010] NSWCA 149, in which the Court of Appeal found that the effect of Leighton v Fox was that the duty of a principal was not co-extensive with that of an employer. It submitted that it owed no duty whatsoever to the plaintiff and all relevant duties were owed by Kaybron 6 as the plaintiff's employer. It submitted that its power to intervene to change the system of work did not impose a duty to intervene to change it to make it safe. 38In my view, P & M continued to owe duties to the plaintiff even though, by 2004, it was no longer his employer. It had created the system of work, which remained unchanged for the period of the plaintiff's employment at its premises. It had created a corporate arrangement whereby Kaybron 6, the plaintiff's employer, employed neither managers nor supervisors, although it did employ leading hands. It had also arranged for HUT to employ managers and supervisors but it was not explored in the evidence whether such persons had authority to change the system of work that had been instituted by P & M. Although the corporate arrangement did not absolve Kaybron 6 from fulfilling the non-delegable duty it owed to the plaintiff, the arrangement and the way in which it worked in practice imposed duties on both P & M and HUT. 39It was conceded by P & M that team leaders and leading hands employed by the Kaybron companies did not have authority to change the system of work and in particular did not have authority to direct that conveyor belts be stopped while they were being cleaned. 40Mr Ujvary's evidence established that P & M was the entity which co-ordinated the workforce of the various Kaybron companies and HUT for the benefit of its own business of selling processed meats. The Kaybron companies and HUT were not merely labour hire companies. I consider that, in the particular circumstances of the corporate structure created by P & M, and of the practical realities as deposed to by Mr Ujvary, P & M owed the plaintiff a continuing duty to monitor the system of work that it had implemented and which continued throughout the period after Kaybron 6 became the plaintiff's employer, to take reasonable care to ensure that that system (namely the one it had implemented) did not expose persons who worked on its premises and for its benefit to unreasonable risk of injury. Although I accept that P & M was not required to do all that was within its power to ensure that the employees of Kaybron companies, including Kaybron 6, were provided with a safe system of work, I reject the submission that P & M had no duty whatsoever to the plaintiff once it was no longer his employer. 41In coming to these conclusions I have reviewed the authorities which have considered the respective liabilities of principals, independent contractors, and labour hire companies, including Unilever v Pahi, J Blackwood & Son v Skilled Engineering [2008] NSWCA 142 and Clarence Valley Council v Macpherson [2011] NSWCA 422. Each case, however, depends on its own facts and circumstances. 42I consider facts in the instant case be somewhat different from those cases where the employer and the principal or the person for whose benefit the work is done are at arms' length from each other. Had P & M relinquished control of HUT and the Kaybron companies, or their operations, when it caused its employees to be employed by a new employer (either HUT or the Kaybron companies), P & M may no longer have owed any duty to its former employees. However, the effect of the evidence of Mr Ujvary was that P & M remained the mind of the business and it continued to make significant decisions affecting operations and the way in which the workforce of HUT and the Kaybron companies was to be deployed and arranged. Because of the effective control which it retained and continued to exercise, I consider, as I have said above, that it owed continuing duties to the plaintiff at least with respect to the system of work that it had previously instituted and which was still in place, unchanged, at the time of the accident. 43P & M was also the occupier of the premises and owned the conveyor. I do not consider that it breached any of the duties which it owed the plaintiff, as occupier.

[22]

The Limitation defence: the claim against P & M and HUT 64The plaintiff's unchallenged evidence was that he was employed by P & M in 1999, his employment was terminated by way of letter dated 16 September 2004 from P & M and that he was first advised by his solicitor in 2007 that his employer was actually Kaybron 6, rather than P & M. The letter of termination was on P & M letterhead, there is no reference in the letter to Kaybron 6 and it is signed "for P & M Quality Smallgoods Pty Limited" by Steve Bertram, Human Resources Manager. A subsequent letter, dated 13 April 2005, also on P & M's letterhead was written by the then Human Resources Manager, Anthea Estwick, to the plaintiff's solicitors. 65P & M and HUT submitted that the plaintiff received group certificates which recorded the name of Kaybron 6 and that his tax returns showed the ABN of Kaybron 6 which corresponded with the ABN on the group certificates. They submitted that the plaintiff would have ascertained the identity of his employer had he taken "all reasonable steps" to ascertain that fact. In response, the plaintiff submitted that he was not cross-examined about his group certificates or tax returns and that accordingly, P & M could not make that submission, and that it ought not be accepted. 66Section 50D of the Limitation Act 1969 provides, relevantly, that: (1)a cause of action is discoverable by a person on the first date that the person knows or ought to know the fact that the injury was caused by the fault of the defendant (s 50D(1)(b)); and (2)a person ought to know of a fact if the fact would have been ascertained by the person had the person taken all reasonable steps before that time to ascertain the fact (s 50D(2)). 67In my view it was reasonable for the plaintiff to rely on the fact that he had originally been employed by P & M as the basis for his view that he was still employed by P & M on the day of the accident. His belief would tend to be reinforced by the terms of the letter of termination and the subsequent letter to his solicitors in April 2005 and the fact both letters were sent on P & M letterhead. I do not consider that "all reasonable steps" required the plaintiff to investigate whether what appeared to be the case was consistent with his group certificates or whether the ABN on his tax return matched the ABN on his letter of termination or the ABN on his group certificates. 68At all events, because the matter was not explored with the plaintiff in cross-examination, I accept that the plaintiff has established that he did not appreciate that he had a claim for damages against P & M or HUT until 2007 when he was first advised that he was employed by Kaybron 6 and not, as he had believed, by P & M. His conduct, which is relevant pursuant to s 50D(3), and that of his solicitor is consistent with his belief that it was necessary for him to establish, as against his employer, whom he believed to be P & M, that he had suffered an impairment of 15% or greater before he could commence proceedings against his employer. 69Accordingly, in my view, the plaintiff did not know the identity of the "defendant" for the purposes of s 50D(1)(b) until 2007. The identity of his employer was an essential fact in the context of knowing where fault was at issue for the purposes of s 50D(1)(b): Bostik Australia Pty Limited v Liddiard [2009] NSWCA 167 at [46]-[49], per Beazley JA, Ipp and Basten JJA agreeing. 70It follows that the plaintiff's claim against P & M and HUT was brought within time because it was brought within three years after the discovery limitation period.

[24]

The extent of the plaintiff's incapacity: past economic loss and damages for future economic loss 72 The plaintiff gave evidence of persisting, but intermittent pain and discomfort in the fourth finger of his left hand, his left arm, his left shoulder and his neck. He said that he suffered shooting pain at times which came on without warning. He gave elaborate evidence of his pain, suffering and lack of capacity to work, care for himself or drive a car. His evidence is largely reflected in the histories he gave from time to time to doctors who examined him for treatment and for medicolegal assessment. 73In his evidence in chief, the plaintiff presented as a broken man, who was timid, fearful and very assiduous in protecting his left hand and arm from any movement or impact. He wore a glove on his left hand. 74During the course of his cross-examination some video footage was shown which depicted an entirely different picture of the plaintiff from the one which was painted through his evidence in chief and in the histories he had given to medical practitioners. The footage, which was taken in September 2010, January 2011 and February 2012, showed him as being able-bodied, capable, well-muscled and entirely unhindered by any physical ailment. It showed him lying on the ground in the course of a picnic, supporting his upper body weight with his left arm; it showed him driving from the Blue Mountains to Sydney to attend a doctor's appointment with Dr Guirgis, who proceeded to certify him unfit for any work; and it showed him carrying bags in his left arm and behaving in a completely normal uninjured fashion as he went about the activities of his daily life. 75The plaintiff was defensive and argumentative when shown the video. He was quick to point out that he had never said that he could not do the things that were depicted in the video and adamant that he suffered pain. When he was cross-examined about the circumstances of the accident he was forceful and articulate. He displayed no aversion or apprehension when revisiting the circumstances of the accident. There was no evidence in these exchanges of any psychological reaction to the memory of the accident or having to articulate the details of what had occurred. 76The plaintiff's written submissions as to the effect of the video evidence were: "The plaintiff notes the surveillance and the plaintiff submits that his injury to his hand is such that he is not unable to do things but suffers severe pain at times and while the surveillance showed him over a discrete period of times [sic], it did not show him during colder weather when he is more likely to suffer pain and discomfort." 77Ms Ndlovu, a registered nurse who was born in Zimbabwe and is 30 years old, gave evidence, which in part, corroborated the plaintiff's version. Since she is his girlfriend and obviously very fond of him I do not consider her evidence to be independent. However, just as the plaintiff has misrepresented his disability to the Court, I consider that he has also misrepresented his disability to Ms Ndlovu. She has done household tasks for him because she believes that he is unable to do them. At one stage she said, in my view, accurately: "Maybe I spoil him." She has made allowances for him because she believes that he has been genuinely injured. Her answers reflect her credulity. Although at times she sought to protect the plaintiff while she was giving evidence, I consider that she has been largely truthful. 78In my view, the plaintiff has decided to rely on workers' compensation payments and feign disability with a view to obtaining a substantial lump sum in these proceedings. I do not accept the plaintiff's evidence as to his symptoms or incapacity except where it is corroborated or amounts to a statement against interest. I do not accept the plaintiff's explanation, given in cross-examination and in his submissions, of the disparity between his evidence in chief and the histories given to doctors on the one hand and what was depicted in the video on the other. 79The plaintiff gave evidence and histories to doctors about taking marijuana and alcohol for pain relief. I do not accept that the plaintiff has ingested the quantities of alcohol or smoked the amount of marijuana that he purports to have. Nor do I accept that such drugs and alcohol were consumed so as to relieve pain associated with the accident the subject of these proceedings.

[25]

The medical evidence 80In accordance with this Court's directions, there were joint conclaves of experts who prepared joint reports which were tendered. 81None of the medical practitioners who treated the plaintiff or who assessed him for medicolegal purposes saw the footage, to which reference has been made above. 82The experts were provided with lists of assumptions and questions. For example, the psychiatrists, Dr John Roberts and Dr Patricia Jungfer were asked to make several assumptions, including the following: "The pain suffered by the plaintiff interferes with his sleep and daily activities... The plaintiff has difficulties attending to his own personal care am and has had to move on numerous occasions to different share houses." 83It will be apparent from my assessment of the plaintiff's credibility set out above that neither of these assumptions has been made out. The undermining of important assumptions and the fact that none of the experts saw the video substantially reduces the value of the expert opinions and the joint reports: Ramsay v Watson [1961] HCA 65; 108 CLR 642 and Paric v John Holland [1985] HCA 58; 59 ALJR 844. The disparity between the assumptions given to the doctors and my findings set out above renders the reports of little benefit where the opinions are based on the assumptions. 84Although the medical practitioners whose reports were in evidence were not privy to the video, some included passages which indicated that they did not believe the plaintiff and thought that he was fit for normal duties. For example, Dr Richard Sekel, a consultant in occupational medicine, recorded in a report dated 29 July 2004: "Mr Opoku is immediately fit for normal hours of work where he does not repeatedly knock the pulp of his left index finger... Mr Opoku appeared to be so reluctant to return to work, that it raises the question as to whether he has some other agenda, or perhaps is undertaking some other work... Today, Dr Masson and I agreed that Mr Opoku's pre-injury duties of holding a hose in his right hand, supported by his left, would be quite suitable for him, and could not possibly cause any risk to him. We agreed that he should be able to return to his normal hours immediately... On 30/7/04 [sic] I had a telephone conference with Dr Sachawars [the plaintiff's then general practitioner] who also stated emphatically that Mr Opoku is now physically fit to return to his normal duties as described above." 85In his report dated 3 August 2007, Dr Sekel recorded: "Mr Opoku states that he never uses his left hand and in fact does not even touch anything with it. However, this does not appear to be correct, for the following reasons:

Although he primarily refused to allow me to touch his left ring finger during the physical examination, at other times when his attention was distracted (while his opposite hand was being examined), I was able to firmly press the left ring finger without causing apparent discomfort.
After the physical examination, he placed his hand back into a thick woollen glove without apparent discomfort, despite the fact that the glove would have been rubbing the skin surface in an identical manner to the way that he had stated was impossible for him to tolerate during the physical examination.
After the examination, when he had left my office building, I noted that he had left a personal envelope on my desk, and I took it out to him shortly after he had sat into his car; I noted that before he saw me, he picked up a carton of takeaway food and held it in his left hand, in a completely different manner to that which he had demonstrated during the physical examination. Mr Opoku states that, because of his left ring finger symptoms, he is unable to undertake any activities and is therefore not looking for work." 86Prof W Bruce Conolly, hand surgeon, suggested surveillance in his report of 26 April 2012, which is consistent with his having difficulties in accepting the assumptions he has been asked to make or the plaintiff's version of the history and his symptoms. Dr Sekel, amongst others, noted that complaints of extreme sensitivity were not consistent with observed behaviour. Dr Roberts, psychiatrist, did not believe the plaintiff to be genuine in his assessment. 87The absence of any muscle wasting in the plaintiff's left upper limb is consistent with normal use of that limb and inconsistent with any limitation in function. 88The plaintiff submitted that: "The totality of the evidence establishes that from the date of accident to 2010 the plaintiff had ongoing hypersensitivity and pain as a result of the neuroma over the digital nerve." 89However, in light of the view I have formed of the plaintiff's credibility I do not accept that the plaintiff had any such hypersensitivity. 90There is nothing in the medical opinions that persuades me that the plaintiff has any physical or psychiatric incapacity to work or care for himself which can be attributed to the injury he suffered on 1 May 2004, which goes beyond 23 August 2004.

Opoku v P & M Quality Smallgoods P/ L & others Opoku v Kaybron No 6 P/L

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Judgment (38 paragraphs)

Cases Cited (14)

Cited By (5)