Adriaans v Woolworths Limited
[2014] VCC 1372
•26 August 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-13-01270
| JOHN BRIAN ADRIAANS | Plaintiff |
| v | |
| WOOLWORTHS LIMITED | Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12 and 13 August 2014 | |
DATE OF JUDGMENT: | 26 August 2014 | |
CASE MAY BE CITED AS: | Adriaans v Woolworths Limited | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 1372 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – lower back injury – identification of the workplace injury – whether the consequences are attributable to the workplace injury – credit – whether the pain and suffering and loss of earning capacity consequences are “serious”
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b)
Judgment: The plaintiff has leave to bring a proceeding for both pain and suffering and loss of earning capacity.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Moore QC with Mr S Dawson | Shine Lawyers Pty Ltd |
| For the Defendant | Mr J Batten | Hall & Wilcox |
HIS HONOUR:
Introduction
1 By an Originating Motion filed 18 March 2013, the plaintiff seeks the leave of the Court pursuant to s134AB of the Accident Compensation Act 1985 (“the Act”) to bring a proceeding at common law to recover damages for injuries which he suffered in the course of and within the scope of his employment with the defendant.
2 The plaintiff alleges that he suffered an injury to his lower back which has resulted in him suffering a serious permanent impairment or loss of the function of his lower back. He alleges that the consequences of the injury to his lower back entitle him to an order that he be given leave to recover damages for pain and suffering and loss of earning capacity.
3 Mr J Moore QC appeared with Mr S Dawson of Counsel for the plaintiff. Mr J Batten of Counsel appeared for the defendant.
4 The evidence adduced at the trial was as follows:
(a) The plaintiff gave evidence and was cross-examined;
(b) The plaintiff tendered his Court Book (“PCB”) pages 4-85: Exhibit A;
(c) The defendant tendered its Court Book (“DCB”) pages 1-197: Exhibit.
The Plaintiff’s background
5 The plaintiff was born in September 1959. He is now fifty-five years of age. The plaintiff commenced an apprenticeship as a pastry cook when he was about fifteen years of age. After completing his apprenticeship, he pursued work using that trade qualification.
6 The plaintiff was cross-examined at some length regarding his work history from the time he commenced his apprenticeship as a pastry cook up until the time he was injured in his employment with the defendant. It became clear to me that the plaintiff has followed a number of occupations outside his apprenticeship training. He has worked as a sub-agent selling real estate;[1] as a picker and packer in a warehouse operated by the defendant;[2] selling bakery machinery[3] and as a trade’s assistant in the mining industry.[4]
[1]Transcript 16-17
[2]Transcript 18-19
[3]Transcript 19-20
[4]Transcript 23-24
7 It was my impression that the cross-examination relevant to the plaintiff’s employment history was principally conducted to establish whether the plaintiff had any transferable work skills, and perhaps reflecting on his creditworthiness and reliability.
8 The defendant relied on part of the plaintiff’s work history to demonstrate that he has transferable skills, and therefore, is capable of undertaking suitable employment referred to in a report of WorkFocus Australia. The report suggested that the duties involved in the occupations of warehouse administrator, customer service assistant and sales representative are within the range of the plaintiff’s residual physical capacities;[5] however, it was my strong impression that the cross-examination did not throw up any evidence reflecting on the plaintiff’s creditworthiness and reliability. On the contrary, it demonstrated that the plaintiff has been in full-time employment throughout his working life up until when he was injured in his employment with the defendant.
[5]DCB 113-122
The Plaintiff’s injury
9 The plaintiff commenced working with the defendant at its Cranbourne store in 2009. He was employed as a baker. He later transferred to its Hampton Park store, where he worked in the same capacity.
10 On 28 December 2010, the plaintiff intended to remove a trolley from a dough prover when he suffered injury. The trolley was loaded with dough. It was placed in the prover for the purpose of allowing the dough to rise. The plaintiff took hold of the trolley and walked backwards with it to remove it from the prover. A wheel of the trolley became stuck in a plughole, with the result that as he was manoeuvring the trolley, it overturned. The plaintiff fell, and the trolley fell on top of him.[6]
[6]DCB 7-8
The Plaintiff’s treatment
11 The plaintiff saw Dr Arvapalli, general practitioner, on 28 December 2010. His first medical report dated 23 February 2011 is breathtakingly brief. He described the plaintiff’s injury as likely to be a moderate muscle sprain. He referred the plaintiff to have physiotherapy.
12 The physiotherapy was provided by Mr Edwards, physiotherapist. He first treated the plaintiff on 7 January 2011. Initially, the plaintiff told Mr Edwards that he had pain in his lower back, right thigh and occasional tingling in his right foot in the mornings. He considered that the plaintiff had suffered a musculoligamentous strain of his lower back with associated right leg sciatica.[7]
[7]PCB 40
13 Dr Arvapalli referred the plaintiff to have a CT scan, which was taken on 3 February 2011. The radiologist reported that there was no evidence of disc protrusion, central canal stenosis, lateral recess or neural exit canal stenosis, and that the facet joints appeared to be normal.[8]
[8]PCB 26
14 Mr Edwards continued providing the plaintiff with physiotherapy treatment. It would appear that he provided that treatment between 7 January and 8 March 2011. On the last occasion that Mr Edwards treated the plaintiff, he understood that the plaintiff had returned to work on modified duties on 10 February 2011. It would appear that in the setting of his understanding of the plaintiff’s return to work, he considered that the plaintiff was suffering from mild back pain and tension in his lower back, that his lower back movements were mildly restricted, and that he would continue to improve over the following six to eight weeks. He was optimistic that the plaintiff would be able to return to his full pre-injury duties.[9]
[9]PCB 41
15 The defendant produced a large number of medical certificates. The first of those was provided by Dr Arvapalli on 8 February 2011. He described the injury as “muscular”. In subsequent certificates dated 25 January 2011, 19 February 2011, 19 March 2011, 11 April 2011 and 13 April 2011, he described the injury in the same way. The next certificate, dated 29 June 2011, was provided by Dr Van Rheede, who operates from the same clinic as Dr Arvapalli. In that certificate, he described the plaintiff’s injury in the same way as Dr Arvapalli.
16 The certificate dated 13 April 2011 certified the plaintiff as being fit for normal duties from 23 to 30 April 2011 for 8 hours’ work per day with 10-minute breaks every hour.[10] However, that changed when Dr Van Rheede provided the plaintiff with the certificate dated 29 June 2011. He certified the plaintiff as being unfit for any duties from 30 June to 28 July 2011. His next certificate, dated 9 September 2011, certified the plaintiff as fit for normal duties; however, with very significant restrictions:
[10]DCB 135
§ sedentary tasks only with no sitting, standing or walking for more than 30 minutes at a time;
§ no bending, squatting or reaching up or across;
§ no climbing ladders or steps;
§ no lifting weights of more than 5 kilograms; and
§ limited to work on Monday, Wednesday and Friday for 4 hours per day.[11]
[11]DCB 139
17 In Dr Van Rheede’s medical certificate dated 15 September 2011, his diagnosis changed from “muscular” to “mechanical back pain – moderate osteoarthritis back exacerbation of”. He certified the plaintiff as being unfit for work, and recommended that he be treated by rest and analgesics.[12] In the certificates dated 30 September 2011 and 25 October 2011, he certified the plaintiff as being unfit for any duties.[13] In the certificates dated 2, 15, 21 and 24 November 2011, he certified the plaintiff as being fit for modified duties for 4 hours per day, four days per week, with restrictions on lifting, bending and sitting, and the need for variation and flexibility in duties.[14] In the certificates dated 7 and 20 December 2012, he certified the plaintiff as being unfit for any duties from 5 to 31 December 2011.[15]
[12]DCB 141
[13]DCB 143-146
[14]DCB 147-154
[15]DCB 155-158
18 The defendant placed particular emphasis on the certificate dated 13 April 2011, which certified the plaintiff as being fit for modified duties for 8 hours per day. It was said to demonstrate that the plaintiff had substantially recovered from a modest injury. The second report of Dr Arvapalli dated 1 June 2011 appears to coincide with the subsequent certificate dated 29 June 2011, certifying the plaintiff as unfit for any duties. In that report, Dr Arvapalli said that three weeks prior to the date of that report, the plaintiff had suffered a flare-up of his symptoms, which he considered required the plaintiff to have complete rest. He referred the plaintiff to Mr McMahon, neurosurgeon, who the plaintiff saw on 6 June 2011.
19 The aggregate effect of the short reports of Dr Arvapalli, together with the certificates, demonstrates that there was a period when the plaintiff was apparently fit to return to work. It would appear that the plaintiff did return to work, but was unable to sustain that return. Additionally, when Dr Van Rheede took over the treatment of the plaintiff, he provided a report dated 26 October 2011 in which he traced the plaintiff’s treatment up to the date when he wrote the report. Unfortunately, the brevity of Dr Arvapalli’s medical reports does not provide the history which he recorded of the complaints made by the plaintiff; however, the report of Dr Van Rheede refers to the clinical history recorded by Dr Arvapalli on 4 January 2010. He diagnosed that the plaintiff was suffering from right-sided sciatica.
20 Dr Arvapalli referred the plaintiff to Mr McMahon. The plaintiff appears to have told Mr McMahon that he was experiencing pain over the right side of his spine, which Mr McMahon identified as the right sacroiliac joint. When he reviewed the plaintiff, it would appear that he had a number of radiological studies for his inspection, which included a CT scan and spinal x-rays. He thought that the most likely cause for the plaintiff’s ongoing symptoms was right sacroiliitis. He suggested that the plaintiff undergo a bone scan[16] and a right sacroiliac joint injection. He referred the plaintiff to Dr Verrills, physician, who performed radiofrequency neurotomies of the right L4 medial branch, L5 dorsal ramus and lateral branches of S1, S2 and S3 on 6 July 2011.[17] It would appear that the neurotomies were performed on nerves at those levels.
[16]PCB 26
[17]PCB 30
21 Mr McMahon reviewed the plaintiff. In his report dated 5 April 2014, he considered that his initial diagnosis of right sacroiliitis was correct. Although he expressed some optimism regarding the plaintiff’s likely rate of recovery and capacity to return to work, he did not see the plaintiff again, and as a consequence, was unaware of the subsequent course of events relevant to the plaintiff’s injury and treatment.[18]
[18]PCB 46-47
22 It would appear that the plaintiff ceased seeing Dr Van Rheede toward the end of 2011, as best I can determine. The plaintiff then saw Dr Paransothy, general practitioner. I assume he saw Dr Paransothy not long after ceasing his treatment with Dr Van Rheede. The plaintiff said that the reason why he commenced seeing Dr Paransothy was because he moved, and it was easier to see Dr Paransothy, who was in Pakenham, whereas Dr Van Rheede was in Berwick. It would appear that Dr Paransothy was aware of the treatment which the plaintiff had undergone before he commenced treating him. He was aware of the diagnosis made by Dr Van Rheede, that the plaintiff was suffering from mechanical back pain with osteoarthritis.
23 Dr Paransothy referred the plaintiff to Mr Timms, neurosurgeon. The plaintiff first saw him on 23 February 2012. He was aware that the plaintiff had been treated by Dr Verrills for what he described as “sacroiliac joint ablations”. The plaintiff told him that he was experiencing pain in his lower back and right leg. Mr Timms described the right leg pain as sciatica. His examination of the plaintiff demonstrated that the pain in his lower back was to the right side, with sciatic symptoms extending to the right hip. He referred the plaintiff to have an MRI scan, which was taken on 9 March 2012,[19] and he referred him to have a CT-guided epidural injection, which was undertaken on 27 April 2012.[20]
[19]PCB 31-32
[20]PCB 33
24 Mr Timms reviewed the plaintiff on 23 April 2012 and before the CT-guided epidural injection. He considered that the plaintiff had suffered “some disc injuries” and mild degeneration at L4-5 and L5-S1 without compression. It would appear that he was assisted in arriving at that diagnosis by the MRI scan. He considered that the plaintiff was suffering from chronic back pain and bilateral sciatica, and that he might be left with a degree of chronic pain and bilateral sciatica. He considered that the plaintiff could return to work on light duties with restrictions on bending and lifting. He recommended that the plaintiff undergo physiotherapy, hydrotherapy and intermittent epidural cortisone injections. He did not review the plaintiff.[21]
[21]PCB 49-51
25 The last report from a treating medical practitioner is the report of Dr Paransothy dated 8 July 2014. He described the treatment which the plaintiff had undergone by July 2014. He considered that the plaintiff was still experiencing back pain and stiffness. He prescribed him painkilling medication. He considered that the plaintiff could not stand for more than 2 hours, sit for more than an hour, and that he was not fit for full-time duties, but possibly light duties for 2 to 3 hours per day. He did not consider that he was suitable to undertake the jobs referred to by WorkFocus Australia.[22]
[22]DCB 113-122
The Medico-legal assessments
26 The first medico-legal assessment was undertaken by Dr Baynes, occupational physician. He examined the plaintiff on 2 February 2011 and 25 February 2014 for the defendant, and provided reports bearing those dates.[23] After examining the plaintiff on the first occasion, he was of the opinion that the plaintiff had suffered a soft-tissue injury, particularly affecting the plaintiff’s right side. He was optimistic that the plaintiff would be able to return to his pre-injury duties in eight to twelve weeks. He recommended that the plaintiff continue with physiotherapy.
[23]DCB 1-4 and 5-9
27 After examining the plaintiff on the second occasion, Dr Baynes’ opinion changed. He was of the opinion that the plaintiff was suffering from a Chronic Pain Syndrome associated with chronic lower back and right-sided buttock pain, facet joint dysfunction and right sacroiliac joint pathology. He considered that the cause of the plaintiff’s pain was somewhat unclear. He considered that the plaintiff was not fit for his pre-injury duties, but had retained a work capacity and was probably able to work 4 hours, four days per week with restrictions. He also considered that the plaintiff’s hours of work could be increased. Finally, he considered that the plaintiff was fit to undertake the jobs described by WorkFocus Australia.
28 Mr Buzzard, general surgeon, examined the plaintiff on 16 May 2012 and 4 March 2013 for the defendant. He provided two reports dated 17 May 2012[24] and 4 March 2013.[25] After examining the plaintiff on the first occasion, he was of the opinion that the plaintiff had evidence of pre-existing degenerative disease at L4-5 and L5-S1, which had been aggravated by the incident. After examining the plaintiff on the second occasion, he repeated that opinion, but considered that the complaints made by the plaintiff were due to the pre-existing degenerative disc disease and the plaintiff’s high body mass index, and that there was no longer any relationship between the plaintiff’s injury and his employment with the defendant. He considered that the plaintiff had a “light work back”. The only restriction he considered was appropriate to impose on the plaintiff was that he not lifts weights of more than 15 kilograms.[26]
[24]DCB 10-17
[25]DCB 18-22
[26]DCB 21-22
29 Mr Shannon, orthopaedic surgeon, examined the plaintiff on 27 November 2012 for the defendant. He provided a report dated 29 November 2012.[27] He considered that the plaintiff was suffering from mechanical lower back pain associated with lumbar disc degeneration and annular tears of discs at L4-5 and L5-S1. He considered that the injury comprised an aggravation and acceleration of pre-existing degenerative disease in the plaintiff’s lower spine. He considered that the plaintiff was not fit for his pre-injury duties or other work involving prolonged or repeated bending or heavy lifting, but was fit for suitable employment.
[27]DCB 24-28
30 Mr Kossmann, orthopaedic surgeon, examined the plaintiff in March 2013 and April 2014. He provided two reports dated 5 March 2013, [28] and 15 April 2014.[29] It would appear that Mr Kossmann expressed the same opinion in both reports. In his second report, he considered that the plaintiff had suffered an aggravation of degenerative changes at L4-5 and L5-S1 without neural compression. He considered that the plaintiff had a work capacity, but with the following restrictions – avoiding walking long distances, on uneven ground, up and down stairs or inclines/declines, climbing up and down ladders, kneeling, squatting or carrying items weighing more than 5 kilograms. Additionally, avoiding sitting for prolonged periods of time or working in awkward positions.[30]
[28]PCB 58-62
[29]PCB 66-71
[30]PCB 70-71
The Plaintiff’s evidence
31 The plaintiff swore three affidavits on 12 November 2012,[31] 8 August 2013[32] and 14 July 2014.[33]
[31]PCB 5-13
[32]PCB 13A-13C
[33]PCB 14-20
32 The plaintiff described the medical treatment he was provided, which I have summarised above. In addition, he referred to being prescribed Panadeine Forte, OxyContin, Tramadol and valium for pain relief, and having chiropractic treatment. Essentially, he described the medical treatment as not being effective to significantly reduce his symptoms of disabling lower back pain.
33 The plaintiff made three unsuccessful attempts to return to work. It would appear that he was absent from his work from the date of the occurrence of the incident until February 2011, when he made his first attempt at returning to work. It is unclear to me when the plaintiff made those attempts to return to work, but included in the Defendant’s Court Book are a series of Return to Work Plans spanning the period from 10 February 2011 to 28 November 2011.[34] All of the Return to Work Plans appear to have recognised that the plaintiff had suffered an injury to his lower back and required restrictions to be placed on his undertaking of physical work.
[34]DCB 34-112
34 In summary, the plaintiff described the consequences of his injury as follows:
· Pain in his lower back, right buttock and right leg. Over the last year, he has suffered an increase in pain in his lower back and numbness in both legs.
· The need for painkilling medication, of the kind described above, to deal with the pain he experiences. At present, the plaintiff uses Tramadol, 200 milligrams twice per day for pain relief.
· Being woken with pain in the region of his lower back and right side after about four hours. Recently, his sleep pattern has worsened. He tends to get three hours’ sleep before being woken in pain. The lack of sleep has resulted in him feeling tired and groggy, which has resulted in interference with his concentration.
· Activities such as using a ride-on mower have been restricted to taking two days to mow lawns, whereas previously it took two hours.
· Being restricted in undertaking vigorous activities, and playing with his grandchildren, although the plaintiff conceded that he does not see his grandchildren as often as he previously did.
· Being prevented from pursuing ten-pin bowling, which was a major sporting activity he pursued. He played that sport several times per week at competition level. He was in the top 10 per cent in competition bowling in Australia, winning many trophies.
· Being unable to contribute much to a hobby/business he and Andrew Phillip Bradbury commenced, breeding parrots. I will deal with this in more detail below.
· Interference with his capacity to drive a car; although he has been able to drive from Queensland to Pakenham after first flying to Queensland, and also from Pakenham to Echuca and return.
· Interference with his capacity to undertake simple domestic tasks required of him. His housemate, Mr Bradbury, undertakes most of the domestic tasks.
· Interference with his capacity to be intimate with his girlfriend.
35 At present, the plaintiff is registered with Paramount Disability Employment which I understand is a Commonwealth government agency established to meet the needs of persons like the plaintiff who are disabled. He is in receipt of a Disability Pension. He was previously in receipt of worker’s compensation payments which ceased after 130 weeks. He continues to see Dr Paransothy for medical treatment. He no longer has physiotherapy or chiropractic treatment. He presently has an application, which I assume has been filed in a court, to review the defendant’s denial of payment for physiotherapy treatment.
The attack on the Plaintiff’s case
36 The defendant made an attack upon the plaintiff on practically every front. Whilst I consider much of the attack on the plaintiff to have been without substance, I am obliged to go through each aspect of that attack to demonstrate why I consider that to be so.
37 Firstly, it was submitted that the plaintiff has not identified an injury which he suffered as a result of the incident. The diagnosis of Mr McMahon was contrasted with subsequent diagnoses as being pathologically distinguishable, and further, whether the plaintiff suffered a discal injury or an aggravation of pre-existing degenerative changes at L4-5 and L5-S1.
38 It is trite to say that the identification of the injury is of importance, because in the absence of understanding the injury, it is not possible to identify the body function which has been impaired or lost. In this case, what is obvious to me is that Mr McMahon set about interpreting the complaints made by the plaintiff based on his inspection of radiology and also his clinical examination. He diagnosed sacroiliitis. Other medical practitioners have disagreed, but what is also clear to me is that most were aware of Mr McMahon’s diagnosis and the treatment which he considered to be appropriate to treat sacroiliitis.
39 Differing diagnoses are a common enough feature of medical practice, and commonly seen in personal injury proceedings. I do not accept the fact that Mr McMahon’s initial and subsequent diagnoses point to there being two pathological processes, with one being work-related and the other one not. It occurs to me that Mr McMahon’s diagnoses need to be seen in the broader context of the medical opinions as a whole. The plaintiff presented with the same complaints to all the medical practitioners; however, each arrived at a different diagnosis. Notwithstanding the differing diagnoses, I think the preponderance of the medical evidence demonstrates that it is probable that the plaintiff suffered an aggravation of degenerative changes at the L4-5 and L5-S1 levels with some probable discal involvement at those levels.
40 Next, it was submitted that the plaintiff has not made any significant attempt to return to work in order to meet his obligations under s134AB(38)(g) of the Act; that is, he has failed to undertake any rehabilitation or retraining in order to exploit what residual capacity he has to return to fitness for suitable employment.
41 I do not accept that has any merit. Firstly, I accept the plaintiff’s evidence that he suffered a significant injury which has disabled him to the extent that he required immediate medical treatment, and indeed, medical treatment which was somewhat invasive; that is, the neurotomies and the CT-guided epidural injection. Secondly, he co-operated with the defendant and attempted to make returns to work which were unsuccessful, because the plaintiff was physically unable to meet the demands of the duties set for him through those Return to Work Plans.
42 It was put to the plaintiff that he has effectively given in to his injuries and is behaving as if he is disabled when he is not. Alternatively, it was put to the plaintiff that he is not so disabled as to be unable to retrain and rehabilitate himself to exploit whatever residual capacity for work he retains. I think the preponderance of the medical evidence suggests that he cannot return to his pre-injury duties, and what so-called suitable employment he might be able to return to must have significant restrictions. In that respect, I do not accept the opinion of Mr Buzzard that the only restriction which should be imposed upon the plaintiff is a lifting restriction of no more than 15 kilograms. It is entirely out of keeping with all of the other medical evidence, and in particular, the orthopaedic surgeons and neurosurgeons who have examined the plaintiff, and in that respect, I refer to Mr Shannon, Mr Timms and Mr Kossmann, and Dr Baynes, who was the only consultant in rehabilitation who has examined the plaintiff.
43 The opinions which I prefer strongly point to the fact that the plaintiff is disabled and has a limited capacity to work with the necessity for the imposition of significant work restrictions. I should add that it is also the opinion of Dr Paransothy, Dr Arvapalli and Dr Van Rheede, evidenced by the later medical certificates which I have reviewed.
44 Lastly, the plaintiff has registered with Paramount Disability Employment, which provides retraining and places workers into employment. He has been offered to undertake a course which is the equivalent of Year 11 and 12 secondary schooling to improve his education. He has been offered to undertake a course which is a pre-entry course to employment that has been put off until 2015.[35] I do not accept that ss(38)(g) of the Act applies, because the plaintiff has attempted to return to work and has been guided in those attempts by medical advice and liaison with the defendant in the formulation of return to work plans. Furthermore, he is registered with Paramount Disability Employment which is a step in retraining and rehabilitation, even though it has not been productive.
[35]Transcript 62-63 and 117
45 Next, there are aspects of what the plaintiff swore to in his affidavits which are said to demonstrate a capacity to function at a higher level. In particular:
· The plaintiff travelled to Ipswich in Queensland to pick up some parrots and then drove from Ipswich to Pakenham. No doubt it is a long journey by road. The plaintiff’s evidence was rather vague about how often he stopped overnight and otherwise, but I accept that he did stop and probably had difficulty driving that distance caused by the condition of his lower back.[36]
[36]Transcript 68-69
· The plaintiff drove to Echuca, where he met an old friend. His friend had a speedboat on the Murray River at Echuca. He was unsure whether he met his friend in 2011, 2012 or 2013. The plaintiff attempted water skiing using a slalom ski and then two skis. The attempt was unsuccessful. He felt a strain on his lower back when he made the attempt to get up on the water skis, with the result that he stopped trying.[37]
[37]Transcript 75-76 and 117-118
· It was suggested to the plaintiff that he had not given up ten-pin bowling as a result of his injury. Mr Edwards recorded that he had in fact returned to ten-pin bowling.[38] The plaintiff said that he stopped bowling around the time he suffered injury, which I took to mean that he attempted bowling subsequent to suffering the injury. He said that when he returned to bowling, he only managed two games. He said he was told to stop bowling by Mr Edwards.[39]
[38]PCB 41 and DCB 123 (particularly the clinical entry dated 1 February 2011)
[39]Transcript 29-32 and 112-113
· The plaintiff was recalcitrant in his attempt to rehabilitate himself, only using a gym membership paid for by the defendant on a handful of occasions. The plaintiff attended over a two-week period only for a paid three-month membership of a gym. He said he was physically unable to do any more.[40]
[40]Transcript 81-82
· The plaintiff has suffered other physical disorders which have resulted in consequences for him.
· The plaintiff has suffered a previous lower back injury.
· The plaintiff has suffered a secondary psychiatric condition for which he is receiving treatment by prescription of medication.
46 The dominant attack made on the plaintiff was based on a hobby/business that he and Mr Bradbury established, breeding parrots. The manner in which he was cross-examined about that suggested that the plaintiff had been less than forthcoming about that hobby/business; however, it appears to me that he made a full account of that hobby/business in his third affidavit. He said that he commenced the hobby/business with Mr Bradbury when the two of them moved into premises at Pakenham. He described the business as being unsuccessful, because in the financial year ending 2012, it suffered a loss of $34,000. Mr Bradbury swore an affidavit on 11 July 2014 in which he said that he and the plaintiff did set up a hobby/business, breeding parrots, and that the business effectively stopped in 2012.
47 The plaintiff was cross-examined about the hobby/business, and it was through that cross-examination that he gave more details about the business, but not such that I have concluded that the detail contradicted the general description of the hobby/business deposed to by him in his third affidavit or in the affidavit sworn by Mr Bradbury. Essentially, the relevant detail is as follows:[41]
[41]The cross-examination essentially is encompassed at Transcript 44-62
· Mr Bradbury owned a pet shop. He had an interest in breeding birds. It was as a consequence of his previous occupation and interest that led to them deciding to breed parrots together.[42]
[42]Transcript 110
· They erected 20 cages to house their breeding stock.[43]
[43]Transcript 45
· The business suffered a significant problem when two pairs of breeding Macaws valued at $20,000 were stolen, as well as a number of other birds. Initially, the plaintiff said that 35 other birds were stolen, and then said that 50 birds were stolen. He said that the total value of all of the birds stolen was about $50,000.[44] The theft occurred in January 2012.[45]
[44]Transcript 59-60
[45]Transcript 64-65
· After the theft of the birds, Mr Bradbury lost interest in the hobby/business.[46]
· Mr Bradbury effectively did all of the work keeping and maintaining the parrots. The plaintiff said his own involvement was modest.
[46]Transcript 115
48 The breeding of parrots may well have started as a hobby, but it became a business in the real sense. The plaintiff and Mr Bradbury registered the name “Pet Parrots”. They engaged in sales which were of sufficient magnitude for them to engage an accountant to submit partnership taxation returns. Three returns were tendered in evidence for the years ending 30 June 2010, 2011 and 2012.[47]
[47]DCB 159-193
49 For the financial year ending 30 June 2010, the business income was $2,930. It recorded a loss of $5,698. For the financial year ending 30 June 2011, the business income was $17,500. It recorded a loss of some $28,183. For the financial year ending 30 June 2012, the business income was $33,315. It recorded a profit of $5,031. No partnership return has been prepared for the financial year ending 30 June 2013.
50 The evidence of Mr Bradbury was not challenged. He shares a house at Pakenham with the plaintiff. In his affidavit, he said that he had observed that the plaintiff no longer socialises, engages in activities outside the house, no longer goes ten-pin bowling, fishing or out on social occasions, such as to the movies, to friends’ homes and out to dinner. He said that he does the majority of the house work in the home they share. He gave a brief description of the hobby/business breeding parrots, but then said unequivocally, “the bird business stopped in mid-2012”. He added that the plaintiff did not do any of the heavy lifting involved in conducting the hobby/business. He would only perform light tasks, such as holding a hose and filling up bowls to provide the parrots with water.[48]
[48]PCB 24-25
51 Mr Desmond Gerard Shoppee swore an affidavit on 8 July 2014. He said that he had a close association with the plaintiff through ten-pin bowling, and indeed, was the plaintiff’s coach at one time. He remained his coach until the plaintiff suffered his injury. The plaintiff told Mr Shoppee that he has not engaged in ten-pin bowling since he suffered his injury; however, Mr Shoppee does not appear to be able to confirm that from his own direct knowledge and belief. On the occasions that he has seen the plaintiff, he has observed him to behave in a manner consistent with having an injury to his lower back.[49]
[49]PCB 21-22
52 I do not propose to spend much time dealing with the attacks made on the plaintiff relevant to other physical disorders, his previous lower back condition and the secondary psychiatric condition, because they amount to little more than distractions. The plaintiff has suffered from, for example a hernia and dengue fever, but there is barely any evidence to suggest that they are active and disabling in any sense. The plaintiff’s prior lower back condition was a long time ago. He had very little treatment, and subsequently, returned to full-time work and continued working without any interference with his capacity to work until the incident occurred. The plaintiff’s secondary psychiatric condition has barely figured at all in the consideration given by the medical practitioners whose opinions I have reviewed above. The only one who suggested it might be of some consequence is Dr Baynes in his use of the expression “Chronic Pain Syndrome”. However, he does not say whether he meant that in the context of it being physically derived or psychologically derived. There is no basis upon which any so-called disentangling is required because there is no evidence to suggest that the consequences of the plaintiff’s lower back injury are attributable in part to a secondary psychiatric condition.
Findings on the evidence
53 Firstly, I do not accept the overall attack made on the plaintiff that he is neither creditworthy nor reliable. I accept the substance of the case he has put. I accept that he suffered an injury to his lower back. I do not accept that the injury treated by Mr McMahon means that the injury diagnosed later is a different injury. Nor do I accept the injury cannot be identified sufficiently for the purpose of then determining whether the consequences contended for by the plaintiff are linked to that injury and the body function impaired by it.
54 I accept that the plaintiff has suffered a major injury. The treatment he has obtained from his treating medical practitioners demonstrates that they provided him significant treatment, some of which was somewhat invasive, because he had a medical condition which required that level of medical intervention. Furthermore, I accept that the plaintiff has pain and disablement of such a degree that he requires the prescription of medication; namely, Tramadol, to treat the pain which she experiences on a daily basis.
55 I do not accept that aspects of the evidence that surfaced during cross-examination are so significant that they undermine the plaintiff’s creditworthiness and reliability. I accept that he did drive from Ipswich in Queensland to Pakenham, and to Echuca and back, but I do not accept that those episodes demonstrate that I should not otherwise accept his evidence in whole. It should be remembered that the plaintiff gave evidence that his driving habit has changed to the extent that he now takes breaks on long drives, and otherwise does not drive as much as he previously did.[50]
[50]Transcript 116-117
56 I accept the plaintiff’s evidence that breeding parrots commenced as a hobby. I do not accept his evidence that it remained a hobby, because it is quite evident that a business name was registered, an accountant was retained and partnership returns were filed for taxation purposes. I rather think that it was a hobby from the plaintiff’s perspective, as he left most of the physical aspects of the business to Mr Bradbury; however, it was nonetheless a business in a true sense. I accept what the plaintiff deposed to in his affidavits regarding the hobby/business. I have little hesitation in doing so, because it is essentially confirmed by the evidence of Mr Bradbury.
57 I accept that the plaintiff has been quite seriously disabled by the injury to his lower back. I accept that the consequences to him are as I have summarised in paragraph 34 above. I am fortified in accepting that evidence, because it appears to me to be confirmed by the evidence of the plaintiff’s treating medical practitioners, and also by Mr Bradbury and Mr Shoppee, who have observed the plaintiff to be disabled by his back injury.
58 Furthermore, Mr Kossmann has undertaken a very thorough examination of the plaintiff. He took an extensive history from the plaintiff regarding the incident and the treatment he has undergone. He was provided with an extensive amount of material to consider, so he was in a very good position to determine the nature and extent of the injury suffered by the plaintiff and the extent to which it disabled him in terms of pain and suffering and capacity for suitable employment. What is clear from his report is that whilst he accepts that the plaintiff has a work capacity, the restrictions which he would place upon the plaintiff would only outfit him for the lightest work of a relatively non-physical kind. It is a compelling opinion which I am inclined to accept.
59 Lastly, the attacks on the plaintiff that he is demotivated and that there are shades of dishonesty in his evidence I think are misplaced. After considering what he has deposed to in his affidavits, what he said in his oral evidence and what I have read in the medical reports, I do not accept that those attacks have tarnished his creditworthiness and reliability.
Conclusions
60 On the basis of the findings I have made above, I conclude that the plaintiff has suffered an injury to his lower back that has resulted in a permanent impairment of the function of his lower back, which in turn has resulted in the plaintiff suffering permanent pain and suffering consequences of the kind and to the extent which I have summarised in paragraph 34 above.
61 The consequences to the plaintiff are major. He now has a life of daily pain; interference with sleep; the necessity to consume painkilling medication; the inability to engage in simple domestic tasks; the interference with the pleasurable aspects of his life, such as outings, visiting friends, going to the movies and going out to dinner, and the loss of the capacity to engage in the sporting activity of ten-pin bowling which is a sporting activity at which he excelled. These are major consequences. When a comparison is made of like impairments, it seems to me that the plaintiff has suffered consequences which meet the statutory test of being “very considerable”.
62 In relation to the plaintiff’s claim for loss of earning capacity, it seems to me that the plaintiff is all but totally incapacitated. The only jobs which are said to amount to suitable employment are the three jobs referred to in the report of WorkFocus Australia.
63 The report of WorkFocus Australia describes the duties which would be undertaken by a warehouse administrator, which the author took from materials obtained from the Australian Bureau of Statistics.[51] However, in a report of Ms Forster of Flexi Personnel dated 14 July 2014, she searched a site – – to discover that a warehouse administrator would also be required to operate a forklift, count stock, stack products, load and unload trucks and undertake activities which would involve heavy lifting.[52]
[51]DCB 118
[52]PCB 82
64 The report of WorkFocus Australia describes the duties which would be undertaken by a customer service assistant, also derived from the Australian Bureau of Statistics.[53][54] However, in the report of Ms Forster she says that it would involve prolonged sitting and/or standing, may require lifting in carrying of products, stock counting, cleaning and tidying of the workspace.[55][56]
[53]DCB 119
[55]PCB 82
65 The report of WorkFocus Australia describes the duties which would be undertaken by a sales representative, also derived from the Australian Bureau of Statistics. However, in the report of Ms Forster, she says that it would involve spending extensive periods of time on the telephone undertaking sales calls and driving to sales appointments. I infer that being on the telephone would involve extensive periods of sitting.
66 The comparison between the two reports reveals that the description of the jobs given by WorkFocus Australia gives the impression that the jobs are simple, straightforward and would be unlikely to provoke any increase in the plaintiff’s pain and disablement if he were to engage in those jobs, even for short period of time each day. In contrast, Ms Forster has pointed to the fact that they each would involve duties that would infringe upon the restrictions which Mr Kossmann would impose on the plaintiff. He is not alone in that opinion. Dr Paransothy would impose similar restrictions on the plaintiff, and in particular, relevant to sitting and standing.
67 I have described Mr Kossmann’s opinion as compelling. I prefer his opinion for the reasons I have already expressed, because Dr Paransothy is of a similar opinion, and also because I accept the plaintiff suffers the consequences summarised in paragraph 34, and is quite seriously disabled to the extent that his capacity to return to suitable employment is very limited.
68 The plaintiff is now fifty-four years of age. Whilst he has some transferable skills, the plaintiff was essentially a baker by occupation. It is a physically demanding occupation. I have also considered the Return to Work Plans, the evidence of Ms Forster and the plaintiff’s attempts to retrain and rehabilitate himself. It seems to me that after having regard to all of the relevant matters in determining whether the plaintiff has suffered a permanent loss of 40 per cent or more, I think the only reasonable conclusion to arrive at is that the plaintiff is essentially totally incapacitated, and perhaps has a theoretical capacity to work some hours per day over some days per week, but not in the jobs contended for by the defendant.
69 On the basis of the findings I have made above, I have concluded that the plaintiff has suffered an injury to his lower back that has resulted in a permanent impairment of the function of his lower back, which in turn has resulted in the plaintiff suffering permanent loss of earning capacity consequences. When a comparison is made with like impairments, it seems to me that the plaintiff has suffered consequences which meet the statutory test of being “very considerable”.
Orders
70 On the basis of the foregoing reasons, findings and conclusions, I grant the plaintiff leave to bring a proceeding at common law pursuant to s134AB(16)(b) of the Act to recover damages for injuries for pain and suffering and loss of earning capacity arising out of his employment with the defendant.
71 After discussion with counsel, I will pronounce formal orders and will hear the parties on the question of costs.
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[54]DCB 119
[56]PCB 82
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