New South Wales Supreme Court CITATION : Scotney v Dickson [2004] NSWSC 1130 HEARING DATE(S) : 12/10/04, 13/10/04 JUDGMENT DATE : 25 November 2004 JUDGMENT OF : Wood CJatCL at 1 DECISION : See paragraphs 95 to 97 CATCHWORDS : Civil Assessment of damages - work injury - cotton press crush injuries. PARTIES : Steven Robert Scotney MJ and P Dickson FILE NUMBER(S) : SC 20083/04 COUNSEL : R S McIlwaine SC with P O'Connor K P Rewell SC with R Wilkins SOLICITORS : Lyons Barnet Kenedy Mulcahy Lawyers - 1 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION WOOD CJ at CL Thursday 25 November 2004 20083/04 Steven Robert Scotney v M.J. and P. Dickson JUDGMENT 1 HIS HONOUR: the Plaintiff suffered crush injuries, on 14 Apr 2001, while working on the Defendants' property in the Warren District. The injuries, which were sustained in a particularly frightening manner, occurred while the Plaintiff was working in a cotton press, or module builder, a large piece of equipment which presses freshly picked cotton into compact modules, using a hydraulic ram. As he described the incident, the press, which was inadvertently operated by a fellow worker who was unaware of his presence, trapped him and pushed him down into the cotton. As the ram moved down the press and back, he was again subjected to its substantial compressive load and he heard crunching sounds in his body. The threat of the press's continuing operation caused the Plaintiff to fear that he would die. There was a lengthy delay until an ambulance arrived which transported him initially to Warren Hospital. He was then transferred to Dubbo base hospital where he remained for about one week. 2 His physical injuries were found, on admission to hospital, to consist of a fractured rib, bilateral haemo pneumothorax, trauma to the chest and upper abdomen and facial bruising. Subsequent plain x-ray and MRI studies have revealed the presence of crush fractures of the T8 and T9 vertebral bodies, a continuing left para central disc protrusion at the T8/T9 level, wedging of the T8 vertebral body and a right L5/S1 disk protrusion which is a non compressive. 3 Since the Plaintiff had no prior symptoms or signs of the kind which emerged after the accident, I am satisfied that the injuries were all occasioned by the incident on 14 April 2001. The consensus of the treating and reviewing medical practitioners is that he also sustained a mild spinal cord injury, associated with the trauma of this accident, which was consistent with the altered cord signal at the T8 level. Liability has been admitted, and the matter proceeded before me as an assessment of damages, to be made in accordance with the Modified Common Law Scheme established by statute for work injuries. 4 To a considerable extent damages were agreed between the parties, as follows: (a) Past Economic Loss $100,000.00 (b) Past Medical and Hospital Expenses $38, 745.44 (c) Past Loss of Employer Superannuation Contributions $11,000.00 (d) Fox v Wood $6, 127.00 (e) Future Medical and Hospital Expenses $100,000.00 (f) Past and Future Care $80,000.00 5 What remains in issue are the non economic loss and future economic loss (and the associated loss of future compulsory employer superannuation contributions), the assessment of which depends upon the extent of the Plaintiff's ongoing disabilities, his pre-accident earning potential and his residual earning capacity. In relation to the calculation of the loss of future earning capacity, the parties have agreed on a current comparable earnings of $700 net per week. The Plaintiff's Pre-Accident History 6 The Plaintiff was born on 27 September 1966 and is now aged 38 years. He was schooled to year 10, and began an apprenticeship as a bricklayer before commencing employment as a boner in 1983, with the Darling Downs Bacon Cooperative Association. That employment continued until March 1998. In the meantime he began flight training and obtained a private pilots license in 1992. In the course of that training he completed the Commercial Private (Aeroplane) Theory course. 7 He also obtained a second job during part of this period with the Oakley Abattoir as a knife hand on the slaughter floor, in order to earn sufficient moneys to complete full-time flight training on helicopters, so as to obtain a commercial helicopter license. After completing the training during 1998 he was endorsed on a Robinson 22 helicopter, and obtained a Dangerous Goods Awareness Certificate pursuant to the Civil Aviation Regulations. Thereafter, in late 1998 and during 1999, he worked for several periods planting sugarcane, and also resumed work as a boner with the Darling Downs Bacon Cooperative. Additionally, he undertook casual work picking mangoes and as bar useful and general hand at a hotel. 8 During 2000 he worked for 5 months as a labourer on a banana plantation, commenced endorsement training on a Bell 47 helicopter, and also worked for various periods as a stockman and picker on a mango plantation. He also had periods working as a truck driver. In March 2001 he began work as a farmhand on the property "Marebone" in the Warren District, where he suffered his injuries. 9 It is evident from this history that, despite his limited formal education, he had an enviable work record, and was also able to use his above-average intellect to undertake, and complete, the various flight training courses mentioned. It had been his ambition to become a commercial helicopter pilot, but he realistically accepted, by the time of the accident, that the opportunities in this field were few and far between, and that it was unlikely he would ever achieved his ambition. As a result, he acknowledges his future employment most probably lay in working at the abattoirs. Although he had not given consideration to a likely retirement date, he understood that most people worked as boners to their mid fifties and as slicers until sixty. Some older boners carried on longer, when they were able to work on middles. 10 There was evidence available, in the form of letters from each of the abattoirs at which the Plaintiff had worked, to support the impression, which is otherwise obvious from his history, that he was a well-regarded and skilled worker. 11 Following the accident, his only employment was in a part-time reduced hours position with a nursery, which was arranged as part of the Work Hardening Rehabilitation course. He has however, resumed his education with a view to completing the equivalent of year 12. He also managed to obtain a Certificate in Chemicals and Applications, and has had some success in computer studies at the South Queensland TAFE College. He was accepted at one time to undertake a 12-months (maintenance) theory course with Aviation Australia, but could not obtain the necessary medical clearance. The Plaintiff's Ongoing Disabilities 12 There are two components that require consideration: the physical disabilities and the claim to post-traumatic stress disorder or psychological sequelae of the accident. There is an obvious association between the two components, although I will, in due course, consider them separately. 13 It is the case that following the accident, the Plaintiff has spent much of his time in efforts to rehabilitate himself, in seeing a wide variety of specialists, and in attending both a pain management program and a general rehabilitation program. Additionally, he has undertaken intensive psychological counselling, received physiotherapy, attended a gymnasium and engaged in hydrotherapy. 14 He has been prescribed an inordinately large number of medications, and has from time to time resorted to alcohol to deal with the pain, frustration and depression which have been the sequelae of his accident and particularly his inability to fly helicopters or fixed wing aircraft. 15 He has continued to live with his parents, and although he reads books, listens to music and uses a computer, and occasionally attends a rugby league game, he has, to a considerable degree, become isolated from friends. He has not been in any form of relationship and does not expect to acquire a partner, no doubt because of the sexual dysfunction which has followed the accident, and his reluctance to become involved with others. 16 He is a smoker and he has been a heavy drinker, although no longer. He is able to do light work around the house and to manage his own affairs. He says that he continues to suffer from a constant tight band of pain around his chest, mid back and abdomen in which is worse with activity, as well as intermittent lower back pain with bilateral leg pain and pins and needles, and numbness around the shoulder blades. He rated the midriff pain regularly at level 6 or 7 on a scale of 10, increasing at times up to level 8. He says that he is unable to sit or stand for more than one hour in the one place, or to drive a motor vehicle for any significant period. He has difficulty lifting and walking for any distance, and finds bending and twisting and overhead activities uncomfortable. When the pain is particularly severe he finds relief by taking a hot shower or lying on a hot concrete slab, or by taking pain suppressant medication. 17 He said that he suffers from erectile dysfunction and post micturition incontinence, as well as episodes of dizziness. He also has some difficulty with toileting, due to problems with twisting, which caused him back pain and sometimes requires his mother's assistance to clean himself. He also has some difficulties in dressing. 18 He has been compelled to give up all of his pre-accident recreational activities which included flying, playing and coaching rugby league, touch football, cricket and golf. Through inactivity he has put on weight and has lost his previous physical fitness. He has difficulty in concentrating and memory as well as a general lack of self-esteem and self-confidence. Apart from having nightmares relating to the accident, he also has general difficulties with sleeping, with the result that he only ever gets a constant sleep of four hours or so every couple of days. As a result he has ongoing feelings of being tired and lacking in energy. He also is more irritable than previously. 19 The Plaintiff said he did not believe that he could ever return to heavy work, or undertake sedentary work which required a high level of concentration or memory, or which required him to sit for more than one hour, or which required him to relate to customers. In cross-examination he agreed that he would like to have a try at areas of work involving bookkeeping, accounts and using IT skills. 20 In order to determine the issue which arises in this context it is convenient first to deal with the physical disabilities which have been the subject of a review by a number of specialists within the fields of orthopaedics, neurology, neurosurgery and urology, who have been qualified by the respective parties. (a) Physical Disabilities 21 Doctor Zeller, an orthopaedic surgeon, Dr Scott Campbell, a neurosurgeon, who examined the Plaintiff in July 1991 confirmed the presence of the spinal injuries which I have noted and of pain and suffering consistent with the effects of the accident. Dr Campbell's diagnosis was one of chronic soft tissue injury and crush fracture of the thoracic spine as well as chronic soft tissue injury to the costo-chondral cartilage of the rib bilaterally. Dr John Pentis, an orthopaedic surgeon who saw the Plaintiff in February 2002 and January 2003, similarly confirmed the consequences of the accident which I have mentioned and noted that they will leave him with residual problems in terms of difficulties with bending, twisting and lifting, especially of a heavy and repetitive kind. In his opinion the ongoing disability was such as to preclude him from returning to heavy manual work, and to require him to be very guarded with recreation and sporting activities so as to lessen strain on his spine. It was his assertion that he was left with a 30% long-term loss of efficient functioning of his spine as a whole. His complaints of sensory numbness, pain, and limitation in the range of his movements, was noted. 22 Dr Noel Saines, a neurologist, reviewed the Plaintiff in October 2001, and again in October 2003, particularly in relation to the distressing band like discomfort, which he had experienced around the trunk since the accident. In October 2001 he expressed the opinion that his discomfort arose from the damage occasioned to the soft tissue and other structures in the lower thoracic spine and rib cage, which had been affected by the accident. He also believed there were "neurological findings on clinical and radiological grounds to suggest that he suffered a mild spinal cord injury...and that this is a component in the pain and dysasthesia involving the thoracic dermatomes, [which] is compounding his symptoms and delaying his recovery." 23 In October 2003 he was asked to review the Plaintiff's complaints of dizzy episodes. These he attributed to Presyncope from postural hypotension, which he could not relate to the previous trauma. He was encouraged to cease using the medication Endep, which had earlier been prescribed, since it can have an effect on blood pressure. 24 A further sequel to the accident has been in the Plaintiff's claims of impotence and urinary incontinence, which has been investigated by Dr Hempenstall, a urologist. In his report of 15 April 2003, Dr Hempenstall said that the problems may "well be multifactorial. It is possible his crush injury at T8, T9 may be a factor with autonomic neuropathy." He added that, "his current medications could also be a factor with respect to effects of Efexor, Neurontin, Deralin, Mobilis and Endep." (b) The Psychological Disabilities 25 The injury was on any view frightening, and I accept the Plaintiff's evidence that he felt his life to have been at risk. Immediately after the press was stopped he felt that he could not breath, or move his legs. He was bleeding from the nose and his vision was cloudy. The response of his fellow workers and of the ambulance officer who came to his aid also left him in no doubt that he was very seriously injured. He feared then and while in hospital that he would be rendered paraplegic. 26 Since the accident he said that he has experienced flashbacks when seeing or hearing of accidents to other people, as well as recurrent nightmares in which he is again caught up in the module builder. He avoids travelling in areas where he might see equipment that would remind him of the accident and he has resisted therapeutic re-experiencing of it. 27 He claimed to have felt depressed, or to be lacking in motivation for enjoyment in the limited activities which he can manage. He also does not like being in the traffic, or in crowds, the latter particularly because of his fear of being bumped and suffering further spinal injury. He also said that he tends to avoid people and gets irritable. He indicated that he had drunk to excess after the accident to relieve the pain and to help with sleep, but said that he had given up excessive consumption of alcohol on the advice of his doctors. He said that he no longer drinks alone. He described himself as lacking self-esteem and self-confidence, with a sense of being a failure. He mainly stays at home which is a very different situation from his pre-accident history of going out socially with friends, flying helicopters and playing rugby league football, and golf. 28 The Plaintiff was treated by Mr Fitzgerald, a psychologist, fairly intensively between 20 July 2001 and 23 February 2002. He has provided a report in which he recorded the Plaintiff's history of deep sadness and strong depression in relation to his ongoing disabilities and limitations. In this document he records his opinion, relevantly, as follows: "The nature and extent of the traumatising event is responsible for the severity of Mr Scotney's symptoms. The length of time it took for the rammer on the cotton module to go from one end of the bin after it first struck his body and buried him in cotton, to the other end, and then, watching it steadily come back again while frantically trying to attract the attention of the operator seems to have significantly etched the trauma into his body and mind. Further, there was a long wait for the ambulance. It seems that the ambulance officer was not aware of the need for urgency. Through the protracted time delay Mr Scotney constantly feared that he would not be able to continue breathing because of the pain and because of his possible internal injuries. It is clear that the effect of the accident was very, very traumatic. The clinical evidence identifies very significant ongoing re-experiencing, avoidance, and arousal symptoms as described by the Diagnostic and Statistical Manual of Mental Disorders, 4th Edition, (DSM-IV), 1994, American Psychiatric Association, consistent with the diagnosis of Post Traumatic Stress Disorder (PTSD). Mr Scotney's ongoing and substantial pain arising in a band around his mid-riff, both front and back has been responsible for a very significant depletion in his overall quality of life. It is my view that Mr Scotney's pain condition has now developed to the situation where its' medical etiology is now compounded by various psychological factors which are exacerbated in and contributing to the severity of his ongoing pain. His a pain condition is now appropriately diagnosed as a pain disorder. … It is my clinical opinion that Mr Scotney has suffered the following psychological injuries as a direct result of the accident on the 14.4.2001 namely:- · Chronic Post Traumatic Stress Disorder (PTSD), DSMIV, 1994, 309.81 at a severe degree; · Chronic Pain Disorder Associated With Both Psychological Factors and General Medical Condition, DSM-IV, 1994, 307.89 at a moderate to severe degree; · Chronic Adjustment Disorders with Mixed Anxiety and Depressed Mood, DSM-IV, 1994, 309.28 at a severe degree. The diagnosis of Adjustment Disorders identifies the many areas in which Mr Scotney is struggling to re-establish his life to his pre accident health and activity which are not covered by the diagnosis of PTSD and Chronic Pain. … It is difficult to consider psychological functioning in percentage terms. However, DSM-IV, 1994 provides a Global Assessment of Functioning (GAF) Scale which is to be rated with respect only to Psychological, social and occupational functioning. Impairment in functioning due to physical (or environmental) limitations are specifically not included. A medical specialists (sic) would be able to provide an estimate of physical functional disability on a percentage basis. The GAF scale provides a rating from 100 indicating superior functioning in a wide range of activities, symptom free, to 1 indicating persistent inability to maintain minimal functioning. It is my clinical opinion that Mr. Scotney's GAF score is 50, indicating serious symptoms, serious impairment in social and occupational functioning. ... Mr Scotney's prognosis depends very much on the outcome of the medical treatment of his physical injuries. If medically his condition becomes permanent, his Chronic Pain Disorder as well as his Adjustment Disorders will take on a degree of permanence. However, if the medical condition can be resolved, it is my clinical opinion that his Chronic Pain Disorder and Adjustment Disorders could be reduced to non significant levels with appropriate psychological treatment. Prognosis of Mr Scotney's PTSD needs to be considered separately. Current clinical opinion is that PTSD carries features of permanence but can be significantly resolved with appropriate psychological and medical treatment. It is my view that because the trauma of Mr Scotney's PTSD was created in a cotton module which need not be central in his ongoing life, the permanent nature of his PTSD may not have a severely limiting effect on the overall quality of his life. In other words, it is possible that Mr Scotney may be able to organise his life such that he would rarely have to face a cotton module which could trigger off significant PTSD relapse." 29 The Plaintiff has been seen by several psychiatrists. Dr Doron Samuell reviewed him in July 2002, February 2003 and August 2004. The first report of Dr Samuel offered the following opinion: "From a psychological perspective alone I would note that Mr Scotney has good concentration. He is able to read a novel and uses his computer on a regular basis. He does not complain of concentration difficulties. His main complaint at present is some sleep disturbance and some intrusive recollections of the accident. From a psychiatric perspective alone he is presently fit to work in any capacity for which he is suitably qualified. Whilst the accident itself and his reaction to it most certainly satisfy the first component of the diagnostic criteria of Post Traumatic Stress Disorder, it is my opinion that Mr Scotney did not satisfy the balance of the diagnostic criteria. I thought that some irritability was better explained by his change in working and physical circumstances. It is my opinion that he does not have a psychological disorder per se. Mr Scotney is likely to adjust better to his injuries when his alcohol consumption has been properly attended to. From a psychological perspective he has coped remarkably well in view of the seriousness of this accident." 30 The second report was to similar effect, Dr Samuell observing: "Once again, as you are aware, I noted Mr Scotney's intrusive recollections and nightmares but I did not consider them to be a source of impairment to him. The degree to which these may cause impairment is fundamental to the diagnosis of a Post Traumatic Stress Disorder." 31 In his report of 6 February 2003 Dr Samuell said: "Despite his serious injuries, Mr. Scotney seems to have adapted quite well to his circumstances. He continues to socialise well and can attend to all activities of daily living. He is planning on coaching a football team in 2003. He can read well and his capacity for communication is normal. There are no observed deficits in his self-care. Since Mr. Scotney has reduced his alcohol consumption, his irritability has also attenuated. He is still drinking alcohol to excess and it is my expectation that further reductions in this will further reduce his irritability. I do not consider Mr. Scotney to be psychologically impaired. He is fully fit in a psychological sense to work in any capacity of which he is suitably qualified. I disagree with Dr. Madden that this man has been permanently psychologically injured." 32 Following his most recent interview, Dr Samuell reported, in a letter dated 22 August 2004: "Once again, I have not made a psychiatric diagnosis. From a psychiatric perspective, Mr Scotney is fully fit to work in any capacity for which he is suitably qualified. You have asked me specifically whether or not Mr Scotney has benefited from attendance at the pain management clinic. He equivocates about this but on balance relates some mild improvement. He told me that he is now taking a reduced dose of Tramal and Panadeine Forte and this is certainly advantageous and important for his ongoing rehabilitation. You have also asked me specifically about his fitness for employment, especially as a bookkeeper or in the IT industry as suggested by the occupational therapy report from Wesley Pain Management Program. Certainly if he has the necessary qualifications then this may be suitable for him. There are certainly no psychiatric restrictions on him in that respect. My prognosis for Mr Scotney is very good From a psychiatric perspective." 33 Dr Bryant who saw the Plaintiff in January 2003 and who appears on the face of the report, by reason of the extent of the material reviewed, the history extracted and the use of psychological testing, to have conducted a somewhat more extensive consideration of the case than Dr Samuell, and of the consequences to the Plaintiff, particularly in terms of his every day life and mood state, came to a very different opinion. 34 He was satisfied that the Plaintiff suffered from a post traumatic disorder, by reference to the presence of the several criteria for the diagnosis defined in the Diagnostic and Statistical Manual of the American Psychiatric Association, as well as a major depressive disorder and a pain disorder. He also noted that he presented with DSM-IV diagnostic criteria for substance abuse. While his alcohol dependence was in evidence before the accident, he considered it to have "been aggravated both by the accident and by his co-morbid psychiatric conditions". The complaints of incontinence and impotence, he said, were quite likely to be a result of his neurological damage, but he added that they might also be related to his alcoholic dependence and antidepressant medication. 35 In relation to the Plaintiff's prognosis and employability, he said: " PROGNOSIS As Mr Scotney's pain has persisted for almost two years it is likely that he will have some continuing difficulties with this and as a result of this there will be continuing difficulties with his mobility and employability. The prognosis for Post traumatic stress disorder is extremely variable. Though the majority improve and settle with the passage of time some sufferers may have persistent symptoms. After the passage of time Mr Scotney has experienced and the amount of treatment he has received it seems likely that this will continue in some measure into the foreseeable future. Major depressive disorders generally respond at least in part to treatment and time. Mr Scotney's depressive condition has improved significantly with psychotherapeutic and pharmacological treatment. He should improve further. It is possible he will suffer recurrences as the condition tends to relapse. Alcohol dependence also tends to be a relapsing condition and though he considers that he has been more controlled since medical advice to that effect it is evident that he still drinks unwisely and is therefore likely to be a continuing problem. I consider it likely that Mr Scotney will suffer permanent disability from the point of undertaking any of the occupations he has experienced in the past. Mr Scotney's psychiatric conditions I consider would result in 20% permanent impairment. EMPLOYABILITY I do not consider it likely that Mr Scotney would be able to return to any of the occupations in which he has previously been employed. In particular I do not think that he would find employment either as a pilot or in aircraft maintenance because of the physical effort required in both these areas. He would require retraining in a new area. At his age both this and finding suitable employment would pose significant problems. Mr Scotney may find employment essentially in sedentary areas, bookkeeping, accounting, computer work or as an aircraft controller. His superior ability and the tenacity of his personality are positive aspects. It seems likely that Mr Scotney's disabilities would prevent him from returning to sporting activities and also curtail his social activities and his ability to enter a marital relationship. Much of his capacity to enjoy life is impaired." 36 Dr Peter Morse saw the Plaintiff in May 2003 and August 2004 and, similarly to Dr Bryant, he came to a very different opinion from that of Dr Samuell. 37 His review also appears to have been extensive and to have drawn upon the reports provided by other medical practitioners as well as his own clinical evaluation of the Plaintiff. In his opinion, based upon the frightening and traumatic nature of the accident, and the fears which it engendered, as well as the intensity of the crush injuries which were sustained, the diagnosis was one of Post Traumatic Stress Disorder which was "chronic and moderately severe". He also found that he had "sufficient symptoms of such intensity and type to fulfil the criteria of him suffering from major depression with melancholic features." Additionally, he said that certain elements, although not all of his present pain experience, were part of a pain disorder, observing: "that post-accident psychological and emotional, social and other factors are causing an amplification of the pain and difficulties dealing with it. There is no doubt that he is significantly depressed and depression always makes it difficult to deal with pain and raises the level of the threshold which pain is experienced." 38 He said, in this regard: "Given the intensity of the crush injury causing the collapse of both lungs and two wedge fractures of vertebrae plus a disc lesion the physical damage to various tissues would be a major cause of initial pain and discomfort and with fear and anxiety referred to above, the fears of further damage as mentioned and the pain itself being a constant reminder of the accident and this causes intensification of brooding and over-concern of the pain which causes emotional, cognitive and continuation of the pain beyond the very real pain emanating from tissue damage." 39 He expressed his disagreement with the conclusions of Dr Samuell, as by implication did Dr Bryant. He noted that the Plaintiff had received intensive psychiatric and psychological counselling for the post-traumatic stress disorder and depression, as well as suitable antidepressant, and mood stabilising and antipsychotic medication. He also thought that he should be encouraged to stay on a reduced level of alcohol or to cut it out altogether, and to commence a pain management program. 40 As to his employability he said: "He is unable to work because of a combination of his physical state, his fear of further accidents and damage, his emotional condition particularly his depression with problems of concentration and self-confidence. Given what has occurred and his present state it is highly unlikely he will ever be fit to fly a helicopter or fixed wing planes in the future. Given his physical state, his pain, his concern about further injury it is highly unlikely he will be able to be employed in any labouring job. It is possible with intensive rehabilitation and re-education, retraining and a number of courses that he may [be] fit to do a more sedimentary occupation but such training and rehabilitation is difficult to organise and he would have difficulty finding suitable work given the area in which he lives and knows people." 41 The prognosis in the short term he thought "very poor indeed", adding: "He has continual physical symptoms and these seem to have stabilised. He has ongoing fear about his physical future. His depression, if anything, has worsened. He has the symptoms of PTSD with ongoing anxiety and fear. If he continues as he is I believe he will become more depressed with the danger of suicidal thought and actual activity. As mentioned above there seems little prospect of him finding work or engaging in other activities. It is always difficult to estimate the outcome of intensive psychiatric/psychological therapy as outlined above but I believe with intensive treatment his emotional state can be improved and become more active but is unlikely ever to return to his pre-morbid level of functioning in all field[s]." 42 By the time of Dr Morse's second examination, the Plaintiff was making attempts to do years 11 and 12 at TAFE, although with difficulties because of pain and lack of concentration. He had also undertaken a pain management program at the Wesley hospital, as well as an intensive rehabilitation program through the Health Advantage Organisation in Towoomba. 43 In his view the Plaintiff still had the features of Post Traumatic Stress Disorder, although they had "eased somewhat", as well as major depression which he thought had worsened, observing: "He seems to present as more depressed being in greater despair with a greater sense of helplessness and hopelessness about the future. He has little in the way of motivation, interest and enthusiasm and lives a withdrawn, isolated life with sleep disturbance and has ongoing quite definite depressive features." 44 Dr Morse also said that he had the features of a pain disorder, and an analgesic dependence due to his "heavy dependence on prescribed analgesia particularly of the narcotic kind with Panadeine Forte, the level of which would be difficult to reduce". The treatment regime which he had previously recommended he thought should be continued. He said in relation to the Plaintiff's employability and prognosis: "He has not worked since I last saw him and the prospects of him finding work look very poor. His physical symptoms prevent him carrying out any manual type work. He has a fear of being near or around machines. He has no education, training, skills or experience in non-sedentary occupations. However it seems he is trying very hard to obtain a HSC and therefore go onto obtain tertiary qualifications to assist him to find a suitable job though this will be extremely difficult for him. Given his present level of depression and anxiety, his difficulty concentrating on his studies, having problems in finding work because of his presentation, his depression and lack of motivation and skills I believe that he will find it very difficult to find suitable work in the future. I have outlined in the previous report his activities prior to the accident. These have all virtually ceased and he leads a very isolated, restricted life. The prognosis must be seen as poor i.e. very little improvement in his emotional state, his physical state has stabilised and is unlikely to establish relationships with people and likely to become more withdrawn. As mentioned in the previous report it is always difficult to estimate the outcome of any specific psychiatric treatment but there should be some improvement in his depression and hopefully some ability to manage his pain but I see him as liable to quite severe depressive episodes for a prolonged period which may worsen in the future." Rehabilitation 45 There were a series of reports tendered from Dr Franz Weill, the Plaintiff's General Practitioner relating to his regime of multiple medications, and the rehabilitation efforts which had been made through physiotherapy, occupational therapy, psychological counselling, aqua aerobics and gym work. They are of limited value save to the extent that they note, for example on 14 October 2002, that while there has been some improvement in the Plaintiff's depression, mobility and pain state, he still has limits to his strength, mobility and ability to control his pain, and that he had experienced great difficulty with a trial of short term work. 46 A number of reports were tendered from the specialists who had been involved in the Plaintiff's rehabilitation, through the services of the Health Advantage Integration Assessment and Worker Health Care Centre. 47 Dr Vern Madden, the Director of this multidisciplinary clinic, recorded his progress in a series of reports between 19 June 2002 and 8 October 2003. In summary they reveal that two issues have been addressed, namely the continuing pain around the area of the thoracic spine fracture, and the significant depression, which was seen to be consequent upon the Post Traumatic Stress Disorder (in reference to which Dr Madden noted the Plaintiff had described "classic symptoms"). 48 It is apparent from his reports that the genuineness of each of the conditions was accepted and targeted via changes in his medication followed by a pain management program, and then followed by study and host employment. 49 In furtherance of the plan that was established, he attended a Work Hardening Pain Management Programme for ten days in September 2002, in which he made some progress, and then began host employment at the Challenge Nursery. Difficulties were encountered there with increasing pain levels, such that he could not maintain more than twelve work hours per week. 50 In Dr Madden's report of 6 December 2002 he provided the following evaluation of the Plaintiff's permanent impairment based on the AMA Guides 5th Edition: "Mr Scotney sustained a fracture of the T8 vertebra, which impacted upon the spinal cord causing objective evidence on M.R.I of damage to the dorsal aspect of such. This has resulted in a traumatic neuralgia in T8 to T10 dermatone distribution. In rating his Impairment due to his thoracic spine injury Mr Scotney has sustained a DRE Thoracic Category Three Impairment (Table 15/4 page 389). The pain related to this injury however is also rateable under the guide's criteria and his impairment classification due to the pain disorder is a Class Two or moderate impairment (Tale 18/3 page 575). Effectively the severity of the pain from the Post Traumatic Neuralgia has effectively increased his impairment into the next category. That is whilst the objective measurable evidence indicates a DRE Thoracic Category three injury, the presence of the Post Traumatic neuralgia has effectively increased the impairment to the equivalent of a DRE Thoracic Category Four and I believe that Mr Scotney's impairment should be at the upper limit of this category giving him a Permanent Impairment of 23%. With regards to Post Traumatic Stress Disorder, Mr Scotney has the following class impairments as per the AMA Guides Table 14/1. Activities of Daily Living Class Two, Social Functioning Class Four, Concentration, Class Three, Adaptation Class Four, overall sustaining a 20% Permanent Impairment for Post Traumatic Stress Disorder (chronic) with associated Major Depressive Disorder Single Episode Chronic and Severe without Psychotic Features. With regards the Rib Fracture, I don't believe that there is any significant Permanent Impairment attached to this. Lastly with regards the Bilateral Haemothoraces I have not made a formal estimation of Mr Scotney's Lung Function thus am unable to give a Permanent Impairment related to this injury. The two Permanent Impairments that are rateable are combined (as per the AMA Guides Combined Value Chart page 604) to give a total Permanent Impairment of 38%." 51 In relation to his residual work capacity, Dr Madden said: "Mr Scotney's previous occupational history included work as a meat worker, bricklayer, truck driver, farm hand on a sugar cane farm, farm hand on a banana plantation, stockman and helicopter pilot as well as of course farm hand on a cotton farm. All these occupations are, in my opinion, now beyond Mr Scotney's abilities. Mr Scotney is, on the objective evidence limited to part-time work in either sedentary or light occupations for a maximum of 4 hours per day three days per week. I believe that the accident therefore has resulted in a significant limitation upon Mr Scotney's earning capacity." 52 His prognosis was for all of the Plaintiff's conditions to remain stable and stationary. He did not consider that there was any further treatment or rehabilitation that would be of benefit to him. 53 In a later report of 8 October 2003 he offered the opinion, which seemed to be generally shared, that the Plaintiff's complaint of dizzy episodes were related to the combination of medications that had been prescribed to him. 54 Dr Madden's assessment was supported by reports from Frances Walker, the case manager in relation to the host employment exercise and from Dr Zeller, an orthopaedic surgeon who had supervised the Work Hardening Program. Dr Zeller attached the reports of the physiotherapists, occupational therapists and psychologists who had been involved in the programme, and summarised the results as follows: "Mr Scotney present[s] as an amiable man of average intellect suffering persistent thoracic symptoms subsequent to a farm injury. He was experiencing significant lifestyle disturbance and depressive symptoms. Mr Scotney engaged appropriately in the program, attending regularly. He displayed a sound basic understanding of the material presented and was able to apply strategies and advice with effect. Mr Scotney has made both subjective and objective progress, having established an appropriate exercise program without provoking his symptoms, improved his functional work capacity measure and improved his optimism regarding the future. The two week program was not enough to reverse his significant disability and depression. Mr Scotney has displayed enough capacity for improvement that continued support for his physical and vocational rehabilitation and his psychological treatment should see a positive outcome in the medium term." 55 The individual reports confirm the genuineness of his complaints, and of his co operation in a way which, it seems to me, excluded any suggestion of malingering or exaggeration. Significantly, in all areas, his perceived capacity was said to equate with his actual capacity. 56 Between 8 June 2004 and 25 June 2004, the Plaintiff attended a Pain Management Program at the Wesley Hospital Rehabilitation Centre, to which he was referred by the Defendant's Insurer. 57 The Discharge Summary, which similarly to the Health Advantage Reports, obviously accepted the genuineness of the Plaintiff's ongoing physical and psychological disabilities, recorded the following in tabular form: On Admission On Discharge Pain Levels: (Visual Analogue Scale) 6 6 Pain Disability Index: 7 8 Functional Capacity Assessment: Self Reported Sitting (minutes) 2 hours 40 Standing (minutes) Unsure 15 (by report) Walking (kms) 500 metres 3 Current Safe Lifting Loads (kg) Occasional bilateral lifting (max 20 mins/hr): From Floor 6 8.5 Waist Level 7.25 10 Shoulder Height 3.5 7.5 Overhead Not Assessed Not assessed Psychological Tests: On Admission On Discharge Anxiety Extreme Extreme Depression Severe Severe Life Stressors Low-average Not reassessed Use of Coping Strategies Inconsistent Inconsistent Perceived Control Low-average Low-Average Ability to Decrease Pain Average Low-average Recommendations: · Maintain physical conditioning program (refer Exercise Psychologist's report) · Pace activities to avoid aggravating his pain (refer Occupational Therapist's report) · Continue counselling for PTSD (refer Psychologist's report) 58 Annexed to this summary were detailed reports from the physiotherapists, the exercise physiologists, the occupational therapist and psychologist, who were involved in the program, which do not require further elaboration beyond noticing the individual assessment of those who prepared the reports as to the genuineness of the Plaintiff, his active approach to the programme, and his motivation to return to work if possible. 59 Dr Atkinson, the Medical Director of the Pain Management Program did draw attention to the desirability of him reducing his medication intake, and also suggested retraining with a view to him becoming involved in IT and bookkeeping. 60 In addition to these reports from the specialists and others who have been directly involved in the Plaintiff's rehabilitation, several reports were tendered from specialists who had reviewed the Plaintiff's case from a medico-legal perspective, in relation to the question of rehabilitation. There is something of a gulf in their assessment of this issue, although none of those specialists suggest that the Plaintiff was otherwise than genuine, or that he did not have ongoing disabilities as a result of the accident. 61 Dr William Sutherland, whose specialty is undisclosed in his medical reports, and who reviewed the Plaintiff on behalf of the Defendant's insurer, saw him in December 2001 and May 2002. On the first occasion he did not consider that he was "really suffering major physical disablement", and said that his depression and post-traumatic stress disorder were "magnifying the physical things out of all proportion". He considered it necessary to attack the psychiatric and psychological condition and to continue his limited exercise plan and made rehabilitation recommendations accordingly. He did not doubt that the Plaintiff had some pain but thought he could cope with it provided he did not have other problems. He noted the existence of some pre-existing degenerative changes in his spine but did not think that they were related to his current symptoms or to his current incapacity for work. He said that he had no reason to exaggerate his symptoms. 62 At the later review Dr Sutherland was somewhat more critical of the Plaintiff, in so far as he seemed to consider that he had not been proactive or assuming of personal responsibility for his rehabilitation. He again expressed a need for his assessment by a multi-disciplinary rehabilitation program, an event which he thought to be long overdue, and for his medication and treatment regime to be reviewed by a psychiatrist. 63 It was his overall prognosis: "With respect to his physical management, I believe that a lack of direction and goal setting has left him demoralised and deflated, adding to the picture of chronic pain and post-traumatic stress disorder. I believe that physically he would be much better than he appears today were he to have appropriate psychiatric assessment and treatment. Overall I do not believe that his physical injuries currently amount to more than 5% whole person impairment in accordance with the AMA Guides with respect to his soft tissue and structural injuries, with perhaps a small allowance for disfigurement arising from the scarring, which is not gross. This might well be considerably reduced with appropriate rehabilitation, although I believe that he needs psychiatric assessment and treatment before a marked improvement will occur physically, because of his depressed state and his recurring nightmares. His principle impairment at the moment is psychiatric/psychological. I am not qualified to assess this." 64 Dr Mulcahy, a consultant occupational physician, also reviewed the Plaintiff on behalf of the Defendant, in May 2003. He similarly accepted the existence of skeletal damage to the mid to lower thoracic spine as a result of the crush accident, which had resulted in back dysfunction. He also accepted the genuineness of the Plaintiff. In relation to his fitness to work Dr Mulcahy said: "a. Following today's assessment I would not regard Mr Scotney as fit to return to any of his previous occupations which were physically arduous. This is basically just about all of his previous jobs, with the exception of aviation. He is, of course, quite unfit to return to flying, particularly with his current medication and also his alcohol consumption. b. Mr Scotney, however, is fit for less physically arduous work. He appears to have quite a good knowledge of computer use and I would suggest that this is probably where his future may reasonably lie. This should be assessed further. I expect that Mr Scotney would be very amenable to further computer training." 65 He added, by way of a summary: " SUMMARY 51. Mr Scotney gives a history of a crush injury to his lower thorax which occurred in mid-April 2001. His subsequent clinical management was appropriate and although he achieved a reasonable recovery he has been left with lower thoracic dysfunction and relatively minor findings. 52. It is important that he should take on greater responsibilities for his own self-managed program for the future and that he should also significantly improve his lifestyle. At today's assessment he seemed quite amenable to these issues. One of the major issues of concern has been his alcohol consumption. This is in a risky category although at present he is "getting away with it". 53. In the long term future there will be further deterioration of his lower thoracic spine due to increasing degenerative changes. 54. He is not fit to return to any of his previous occupations. He is, however, easily fit for a sedentary or semi-sedentary office based job. He apparently has quite a good grasp of computers and computer usage. 55. Mr Scotney was quite a friendly, pleasant and cooperative young man. He gave the impression today of being quite well motivated towards playing his part to improve his circumstances. It is unfortunate that this only seems to be happening now, bearing in mind that he has had a lot of rehabilitation intervention since this accident." 66 His impairment assessment was as follows: "1. This is calculated according to the American Medical Association Guide, Fifth Edition. The criteria for rating impairment due to thoracic spine injury is described on page 389 in Table 15-5. Mr Scotney would be classified as Category 2, with a whole person impairment between 5 and 8%. Due to the condition which presented today, the figure of 7% is selected as being the most appropriate. 2. There was no other impairment associated with this event. Similarly, there is no reduction in this figure due to any pre-existing condition." 67 Dr Keith Adam, a specialist in occupational medicine, saw the Plaintiff in February 2004. In summary, it was his opinion that the Plaintiff was permanently incapacitated for work requiring strenuous physical activity or heavy lifting, with the result that he could never resume his pre-injury duties. However he believed him capable of re-entering the workforce performing suitable duties, although not at that stage. He said, in this respect: "I believe that Mr Scotney first needs to undertake a graduated programme of physical conditioning and work hardening, similar to that he previously undertook at The Health Advantage. Unfortunately, since prematurely terminating his host employer return to work, a lot of the fitness which Mr Scotney had previously achieved has been lost. He has continued to attend a gymnasium, but without the supervision or focus which I believe is required. Once he has regained that level of fitness, which could take between six weeks and three months, then a return to restricted duties would be contemplated. At this stage, I would expect that he would need to avoid work which required sustained or repetitive bending and stooping, or prolonged sitting. Feedback from progress in an exercise program, and/or a functional assessment might be required to refine these restrictions." 68 He also said: "As outlined above, Mr Scotney first needs to improve his level of physical fitness, and take his focus away from his pain. Some assistance with vocational direction would be helpful once Mr Scotney begins to focus on his abilities and his future, rather than on his symptoms." 69 His overall opinion was as follows: "While there is clear and objective evidence that Mr Scotney has suffered significant injuries, including some spinal cord damage as a result of the accident, which occurred on 14 April 2001, I do not believe that these injuries are so severe as should prevent him from returning to some form of gainful employment. There are some anomalies in his description of his various functional capacities, and I believe [it] is psychological, rather than physical factors which are currently the most significant bar to his recovery. He remains focused on his symptoms, and his expectation that he just wants to be pain-free before returning to work is unrealistic, and these factors tend to mitigate against his successful rehabilitation." 70 Finally, I come to Dr Stephen Buckley, a consultant physician in rehabilitation medicine, who saw the Plaintiff in May 2003. His opinion as to the Plaintiff's future capacity for work is encapsulated in the following concluding paragraphs of his report of 22 October 2003: " FITNESS FOR WORK I note that I indicated in my report of 29.6.03 that the vertebral column and spinal cord impairment ruled out heavy manual labour. Other work, including light manual work, sedentary, or cognitive duties, are affected by his heavy medication schedule provided for neuropathic pain. Large doses of Neurontin, Panadeine Forte, and Endep, cause significant impairment of concentration and fatigue, and therefore taken in combination with the effects of neuropathic pain, rule out all other duties. SUMMARY Mr Steven Scotney is, in my opinion, unemployable following a crushing injury in a cotton press, which has caused serious spinal column and spinal cord impairment, with primarily neuropathic pain resulting. As a result of the spinal column impairment he is unfit for heavy manual labour, and the severity of the pain and requirement for heavy analgesia would rule out employment in any other capacity." 71 Before dealing with the two heads of damage that remain in issue, I observe that a video was tendered recording the Plaintiff's movements at railway stations, and at the airport, during a visit which he made to Sydney, in connection with these proceedings on 1 May 2003. Although the Defendant submits that it showed the Plaintiff to be unrestricted and pain free, particularly while using some escalators, I am not persuaded that anything of value can be gained from it. The Plaintiff does not suggest that he cannot walk or sit down, and there is no way of gauging from the video whether he was in pain. 72 Like many other videos tendered in proceedings of this kind, it captures but part of one day in the Plaintiff's life. It does not show him involved in any significant physical activity, and is otherwise wholly unremarkable. It neither adds to, nor detracts from, the Plaintiff's case. 73 In the light of this review of the evidence, I turn to the assessment of the two outstanding areas of loss. Non Economic Loss 74 The maximum amount, which can be awarded for this head, is $252,550.00, and its assessment, so far as the Plaintiff is concerned, depends upon the relativity of his case to that of the most extreme case. 75 The Plaintiff argued for a percentage of 65%, while the Defendant submitted that it fell at about 40%. The arbitrary nature of the exercise called for is obvious. What is equally obvious is that the plaintiff suffered a serious and very frightening crush injury. He has been left with constant pain of a significant kind, which places extensive limitations upon his physical activities, and which has permanently prevented him from engaging in any form of heavy work and from resuming any of his pre-accident activities. He also has some distressing and embarrassing side effects, in relation to difficulties with toileting, impotence and incontinence. 76 Additionally, there are the psychological sequelae, which I accept to be present, and which comprise a post traumatic stress disorder, depression, a pain disorder and some analgesic dependence. These have left him depressed, irritable, lacking in self esteem, socially isolated and subject to nightmares, impaired sleep and flashbacks, as well as diminished concentration and memory. 77 In this regard, I reject Dr Samuell's opinion, as one that was unsupportable upon the remainder of the evidence, particularly that of the Plaintiff and of the experts who have worked on his rehabilitation. 78 It is not easy to understand how Dr Samuell came to the opinion which he did in the light of the remaining evidence. I can only assume that he placed undue weight on the Plaintiff's past abuse of alcohol, or that he placed too much reliance on a subjective impression of his presentation in the consultation room, without appreciating that the Plaintiff was, by nature, a somewhat undemonstrative man. 79 I found the Plaintiff to be a genuine witness, who frankly and without embellishment, but with obvious disappointment and sadness, related his experience and subsequent disabilities. I am not alone in finding him to be genuine, as that had been the obvious impression of the reviewing medical practitioners, save for Dr Samuell. His antecedent work record, and his persistent attempts to secure rehabilitation show this to be the case. 80 In assessing this head of damages, I have reached the conclusion that considerable weight should be placed on the reports of Dr John Pentis, Dr Madden and Dr Saines, as well as on the Wesley Hospital Discharge Summary, in relation to the ongoing physical disabilities. The reports of Drs Sutherland and Mulcahy seem to me to have somewhat understated the physical component, in a way that is inconsistent with the injuries which are radiologically apparent, and with the rehabilitation evaluations, although neither questions the psychological impairment or its contribution to the Plaintiff's ongoing problems. On the other hand, it seems to me that Dr Buckley has erred in the opposite direction, and in the light of the remaining evidence and rehabilitation evaluations, has somewhat overstated the physical sequelae. 81 I am satisfied that the impact of the accident on the Plaintiff has been severe, that its effects are permanent, and that little more can be achieved by rehabilitation, save by reduction in the Plaintiff's use of analgesics, continued reduction in his intake of alcohol, and completion of his studies followed by the use of any qualification which he is able to obtain, in some form of part time or casual employment. 82 I am satisfied from the experts' reports that his continuing problems are multifactorial in source, and that reduction in the extent of the psychological sequelae on the one hand, or of the pain, on the other hand, would have a significant potentiating effect on the other. I also accept that there has been a degree of improvement although that does seem to have plateaued out. 83 It may be that the finalisation of this litigation will also assist, to some limited extent, but whether or not that will occur is not determinable. At this stage, I am satisfied that the non-economic loss should be assessed at 58% of a most extreme case. On that basis I assess this head of loss as: $252,550 x 58 = $146, 479.00 100 Future Economic Loss 84 It was the Plaintiff's submission that he has no residual earning capacity, while the Defendant submitted that he had a current capacity equivalent to 50% of the agreed comparable earnings, or $350 net per week. The Defendant was however prepared to allow a continuing loss of $700 net per week, for the remainder of this year, and for the year 2005, so as to allow the Plaintiff to complete his studies, with the result that any assessment for the future should involve an appropriate postponement. 85 The Plaintiff asserted that the assessment should be made to age 65, although possibly not for the full period as a boner, while the Defendant asserted that, on the assumption that the Plaintiff would have returned to work as a boner, the assessment should be to age 50, with a modes and buffer in the order of $20,000 for the possibility of him having obtained some work, from time to time, thereafter. 86 In essence it was the Defendant's submission that with his background and completion of his training, the Plaintiff should be able to obtain clerical or data entry work, at the bottom end of the possible wage range. There was no suggestion that he could obtain programming skills or higher level IT employment. Although there was at least a suggestion in cross-examination that the Plaintiff could acquire some form of employment in the aviation industry, either as part of the ground staff of an airline, or in aircraft maintenance, or as an air traffic controller, it was not pursued in the final address. I would exclude any such prospect as quite unrealistic. The latter would be ruled out because of the Plaintiff's continued need for medication and because of his problems with concentration. Airline work, whether in an office, at an airport, or in maintenance, would not be realistic because of the nature of the duties involved, the difficulties which the plaintiff would have in relating to customers, and the hours of work that would be involved. 87 It was submitted on the Plaintiff's behalf, that he now has no residual earning capacity, having regard to his difficulties with pain, concentration, memory, inability to relate to others, irritability, tiredness, and his age which would take him to 39 years at the earliest that he could complete his current studies. 88 Clearly the Plaintiff, on his record, had a pre-accident capacity to work in the abattoirs, as a truck driver, and in a wide variety of farming and pastoral activities, all of which involved significant manual labour. 89 Having regard to the Plaintiff's employment history, and attitude to work, I consider it likely that he would have worked until he was somewhere between the ages of 60 and 65. 90 What is of importance, in this assessment, is an appreciation of the realistic or practical capacity which the Plaintiff retains, not some theoretical residual capacity which he will not be able to exercise. 91 Dr Buckley alone suggested that the combination of the Plaintiff's physical and psychological problems has destroyed his residual earning capacity, while at the other end of the spectrum Dr Samuell seemed to think that he could return to most, if not all, forms of work. These are extreme views which need to be discounted, in the light of the remaining evidence. 92 There is otherwise complete, or at least very substantial, consensus, for example via Drs Pentis, Bryant, Morse, Mulcahy and Adams, that heavy manual work is excluded, and that while some form of suitable sedentary work, after retraining, should be within the Plaintiff's capacity, the problem will still be in finding that work. 93 Dr Madden's assessment of the Plaintiff's capacity as being limited to sedentary or light work in the order of four hours per day for three days per week, is very significant for this assessment, and appears to me to be a realistic evaluation of his capacity, subject however to the critical question as to whether, on the open labour market, this capacity can be translated into actual employment. 94 In my view, the Plaintiff's residual earning capacity consists of an ability, after retraining, to undertake limited part time or casual work, in a sedentary or clerical position, in which he is given favourable treatment allowing him to take breaks, to move his position, and to take absences when his problems flare up. In his favour are his intellect, and his motivation to do something within the work force. His capacity, however, requires some adjustment downwards, because of the difficulties that he will face, at his age, with a background of blue collar work, and a history of injury and disability which will have kept him out of the workforce for 5 years, in finding employment. On the other hand, it will be very much in his interests to seek work, so as to restore his self esteem. 95 Upon that basis I propose to award damages for 1 year and 3 months by reference to a total impairment of earning capacity, and thereafter until 60 years upon the basis of partial impairment, allowing him a residual capacity of $200 net per week, sounding in a current loss of $500 net per week, and by allowing a buffer thereafter for some casual or part time work until age 65. 96 That loss is to be calculated by reference to the following components: (a) 1 year 3 months to 31 December 2005 at $700 net per week: $45,500 (b) Loss deferred by 1.25 years until retirement at age 60 (deferral factor 0.942), with a 15% discount for contingencies: $500 x 685.6 x 0.942 x 0.85 = $274,480 (c) Buffer for period age 60 to age 65: $30,000 $349,980 97 I direct the parties to bring in short minutes to reflect these assessments, as well as the loss of future compulsory contributions for superannuation. I will then hear any argument as to costs. ********** Last Modified: 11/29/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.