Al-Banaa v VWA
[2025] VCC 759
•5 June 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-24-03269
| RAAD AL-BANAA | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
---
JUDGE: | His Honour Judge Pillay | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3 and 4 June 2025 | |
DATE OF JUDGMENT: | 5 June 2025 (ex-tempore) | |
CASE MAY BE CITED AS: | Al-Banaa v VWA | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 759 | |
REASONS FOR JUDGMENT
---
Subject:SERIOUS INJURY APPLICATION
Catchwords: Workplace injury – lower back injury – worker under 26 when injured - worker had to establish lost earning capacity of 40 per cent or more – consideration of residual earning capacity – credibility of the plaintiff - application to re-open plaintiff’s case granted
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act2013 (Vic)
Cases Cited:Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170; Herald & Weekly Times Ltd and Victorian WorkCover Authority v Jessop [2014] VSCA 292; Margriplis-Hampton v Spendwatt Pty Ltd [2022] VSCA 15; Juma v Kone Elevators Pty Ltd [2024] VSCA 217
Judgment: Application for pain and suffering damages granted and application for loss of earning damages dismissed
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms M Pilipasidis SC with Mr B Cooper | Maurice Blackburn |
| For the Defendant | Mr B McKenzie | TG Legal + Technology |
HIS HONOUR:
1Mr Al-Banaa was aged 21 when he suffered injury to his lower back while working as an apprentice plumber. The central issue is whether, as a worker under 26 at the date of injury, Mr Al-Banaa can prove that as at the date of the hearing, he has suffered a, 'Loss of earning capacity of 40 per cent or more.'[1] This is to be calculated on common law principles, and calls for a consideration of Mr Al-Banaa's residual earning capacity, and his earning capacity that he would have had, had he not been injured.
[1] s 325(2)(e)(i) Workplace Injury Rehabilitation and Compensation Act 2013 (Vic)
2If he can demonstrate such a loss, then he submitted he ought to be entitled to determinations of serious injury in respect of his pain and suffering and loss of earning capacity consequences. The defendant opposed such determinations on the basis that the plaintiff's evidence lacked credit overall, and furthermore, it was deficient in respect of the loss of earning capacity component in identifying his without injury earning capacity.
3For the reasons to follow, I have determined that the plaintiff is entitled to a determination in respect of his pain and suffering claim. However, for reasons also which will follow, I have determined that his application in respect of his loss of earning capacity component should be dismissed.
Relevant history
4Turning to the relevant history. The plaintiff was born in September 1996 in Iraq. In 2014, he left Iraq with his family and travelled to Türkiye as a refugee. He was ultimately resettled in Australia in September 2016. In a demonstration of some industry, he enrolled in a Certificate II in plumbing, and began work with a local plumber shortly thereafter in 2017. He then formally signed on as an apprentice with Click Plumbing in mid-2018. He described this work as involving heavy, physical labour, such as shovelling and digging trenches.[2]
[2] Plaintiff’s Court Book (“PCB”) 19 at paragraph [16]
5On 14 June 2018, he was doing jackhammering work and felt severe pain in his spine and groin.[3] He went to see his treating doctor at the Barry Road Medical Centre, and had a CT scan done. He took a few days off work, but then returned. On 21 June 2018, he was working with the defendant, performing jackhammering work again, and felt pain, particularly in the left side. He was investigated for this pain and diagnosed with a left inguinal hernia. He proceeded to have a left hernia repair by Mr Hodgson on 6 July 2018. He did not return to work. He continued experiencing pain in his low back and saw his doctor over this time.
[3] PCB 19 at paragraph [19]
6On 9 January 2019, MRI of the lumbar spine showed an abnormality of the L5-S1 disc, with protrusion and contact with the S1 nerve root.[4] He remained off work during the course of 2019, and was having physiotherapy treatment on occasion at Mill Park Physiotherapy.[5] He was also diagnosed with a right-sided work-related hernia, and had that operated upon on 10 December 2019. He remained off work. The plaintiff gave evidence that he did not like staying at home and wanted to complete his plumbing apprenticeship
[4] Defendant’s Court Book (“DCB”) 9 and PCB 91
[5] PCB 71
7While his work at Click Plumbing had ended, he decided to go back to work as an apprentice in the plumbing trade, and so began working with Specialist Plumbing in about September 2020. He worked there as an apprentice plumber. He continued to have pain on and off with his back and required some interventional treatment on it in November 2020, when he had branch blocks performed at the L3 to L5 level.
8He continued on working, however, with back pain on and off, and saw Dr Tahir, a rheumatologist, in October 2020. He referred him onto Mr Sher, a neurosurgeon, who saw him in October 2021. Dr Tahir reviewed MRI scanning and diagnosed him with an L5-S1 disc protrusion with no neural compression, but which he considered would have a significant effect on his work capacity.[6] He did not consider that surgery was necessary.
[6] PCB 57
9He continued on working with Specialist Plumbing until June 2022, and shortly thereafter, he started with Superior Plumbing, and ultimately completed his plumbing apprenticeship in August 2022. His evidence was that thereafter, he did subcontracting work with Superior Plumbing under an ABN number, as they wanted to employ him that way. His evidence was that he had found the work as a plumber to be too physically demanding, and would flare up his back pain.[7]
[7] PCB 22 at paragraph [42]
10As a result, in January 2023, he decided to try roofing work. He started with R1 Roofing at that time. His evidence was that this job earned him less money, and furthermore, he could not do it as it involved long drives which aggravated his back condition. As a result, in June 2023, he left roofing work and commenced doing subcontracting plumbing on his own. In this role, he picks and chooses his jobs so that he can manage his back injury.[8] This continues to be the position today.
[8] PCB 23 at paragraphs [46]-[47]
The course of the litigation
11When the plaintiff lodged his originating motion, he originally claimed that he had suffered serious injury to the neck, low back, bilateral herniae, and suffered from a severe psychological condition. At the commencement of trial, counsel abandoned all but reliance on the low back injury as supporting determinations for serious injury on both pain and suffering and loss of earnings bases. The plaintiff was the only witness who was called to give evidence. He gave evidence, at times, through an interpreter.
12At the conclusion of his evidence, both court books were tendered, in addition to two tranches of video surveillance, which were exhibited, and admissions were made in respect of them. That is specifically that 31 hours of surveillance work taken, and 67 minutes shown in Court. Both cases were closed, and defendant's counsel then proceeded to finish his closing address. During the course of plaintiff's counsel's closing, she made application to re-open her case to put a further affidavit before the Court as to her client's loss of earnings case. The application was opposed.
13The application was adjourned to the next day. At that time, I heard arguments in respect of re-opening the case, and granted leave to re-open on a limited basis; that the reopening was only in respect of a further third affidavit, which the plaintiff proposed to tender. Brief reasons were read into transcript in respect of that application. On re-opening, the third affidavit was then tendered. No cross-examination was conducted.
The central issue
14By reason of the decision in Abdulle[9], it is clear that if the plaintiff is successful in demonstrating serious injury by way of loss of earning capacity, ordinarily, it would follow that a determination of serious injury in respect of pain and suffering would be made. For that reason, I propose to deal with the issue in respect of the plaintiff's loss of earning capacity first, as it prove decisive in determining the pain and suffering application.
[9] Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170
15It is first useful to set out the plaintiff's evidence in respect of his loss of earning capacity as he deposed to in his affidavit. In his first affidavit, he deposed in the following terms:
“I had always planned to have my own plumbing business, where I had my own workers and machines. I hope to get into commercial work eventually.[10]
This no longer seems possible to me now. It would be hard to attract commercial clients if I am turning down work that aggravates my back injury. I don't see how realistically I can expand my business enough to afford to take on my own workers if I turn away jobs and turn off future clients.[11]
Even if I did manage to get my own workers, I can't see how I could run a business effectively if I can't demonstrate to my own workers how to do certain tasks, like how to properly dig a trench, or use a jackhammer, or I can't jump on and be on the tools if needed.”[12]
[10] PCB 23 at paragraph [48]
[11] PCB 23 at paragraph [49]
[12] PCB 23 at paragraph [50]
16In his second affidavit, sworn on 27 May 2025, just prior to commencement of the application, he stated:
“I refer to paragraphs 48 to 50 of my first affidavit, and say further, that had I not suffered injury, I would have started my own plumbing business and moved into commercial plumbing work. I am aware that, with overtime, as a fully qualified plumber operating his own business, I would have been able to earn in excess of $120,000 a year. I no longer have the capacity for this type of work, and I believe that my earning capacity is limited to around what I am currently earning.”[13]
Just pausing there. That was the state of the plaintiff's affidavit evidence at the commencement of the hearing. It was the state of the affidavit evidence until leave was given to re-open the plaintiff's case to admit the third affidavit on the second day of the hearing, on 3 June 2025.
[13] PCB 30 at paragraph [21]
17In this third affidavit he deposed in the following terms:
“I always wanted to start my own business to support myself and my family. However, if my earning potential in commercial plumbing was going to be greater, I would have continued working as an employee and sought commercial plumbing work rather than operate my own business. I understand from reviewing the Flexi report obtained for my case that working as an employee, I could have earned in excess of $120,000 per annum.[14]
If I was likely to make more money continuing to work as an employee in commercial plumbing, I would have pursued this option as I also understand there are other benefits, including overtime and shorter hours.”[15]
[14] Plaintiff’s third affidavit sworn 3 June 2024 at paragraph [3]
[15] Plaintiff’s third affidavit sworn 3 June 2024 at paragraph [4]
18It can be seen that the third affidavit made reference to a Flexi Personnel report which was produced in support of the plaintiff's application and is dated 11 April 2025.[16] In that report there are details in respect of a plumber working in construction on a commercial building site, which plaintiff's counsel relied on. Broadly, the figure which the plaintiff submitted was applicable was $135,304.
[16] PCB 104
19I note, in the report, the figure appears as $133,588.80, however, in opening, counsel for the plaintiff submitted this was a calculation error in the report and the proper figure was as she had stated.[17]
[17] Transcript (“T”) 7
20The evidence above was used by the plaintiff to put two arguments, specifically as to the way in which his loss of earnings claim was put. First, that without his injury, he would have opened his own plumbing business, and in that, could have earned at least $120,000 per annum. In that scenario, the 60 per cent threshold was $72,000. The second, and primary way the claim was put, was that the plaintiff, once he realised he could earn more money as a plumber on a commercial construction site, would have commenced such work and be earning at least $135,304 per annum.[18] In that scenario, the 60 per cent threshold was $81,000.
[18] Ibid
21In both circumstances, the plaintiff submitted his current with injury earning capacity was below the threshold. As evidence of that, he called in aid his last tax return which demonstrated earnings of only $67,000. See the plaintiff's taxation summary for the financial year ending 30 June 2023.[19]
[19] PCB 126
The applicable principles
22The plaintiff placed much reliance on the Court of Appeal's decision in Herald & Weekly Times v Jessop[20], particularly the passage at paragraph [53]. It will be apparent from the discussion there that the court was considering the case of a worker who was over the age of 26, and whose application for loss of earnings was captured by the provisions in s 134AB(38)(f)(2).
[20] Herald & Weekly Times Ltd and Victorian WorkCover Authority v Jessop [2014] VSCA 292
23Analogous to the same provision in Workplace Injury Rehabilitation Compensation Act, 325(2)(f), this is not the section which governs Mr Al-Banaa's case, being 325(2)(e).
24The Court said, in Herald & Weekly Times v Jessop:
“It follows from the above analysis, that common law principles for assessing damages for economic loss are not applicable to paragraph (f) of s134AB(38) of the Act, except to the limited extent that the language of that provision might be said to reflect some aspect of those principles.”[21]
[21] Ibid at paragraph [36]
25What the Court, in Jessop, then went on to discuss in subsequent paragraphs was the evidentiary considerations when coming to apply those common law principles. In this case, it is accepted that common law principles do apply in the application of s325(2)(e), and it is here that the defendant submits the plaintiff has not met his evidentiary burden in satisfaction of common law principles that require him to prove, on the balance of probabilities, his without injury earning capacity.
26This is the issue the defendant raises for consideration in this matter. On this point, I consider that the matter of Margriplis-Hampton v Spendwatt Pty Ltd[22] offers recent guidance. It dealt with s325(2)(e) specifically. In that case, at the date of injury in 2014, Mr Margriplis-Hampton was under 26 and an electrician.
[22] [2022] VSCA 15
27At the time the matter came on for trial in 2020 he was running his own business which employed a number of plumbers and electricians. His case was specifically put in two ways. The first was that if he had not been injured he would have been capable of earning 140 to $145,000 a year as a subcontracting electrician himself.
28The second was that if he had not been injured, Mr Margriplis-Hampton would have been capable of earning at least $145,000 in his current business by performing some or all of the electrical work himself rather than having to pay a subcontractor to do that work. His application at hearing in this court were dismissed as he had not sufficiently proved either case. The Court of Appeal stated, at paragraph 16 of their judgment:
“Often persuasive evidence as to what a young person would have done or earned if not injured, particularly over the years or decades to come is very difficult to obtain or to assess. In a damages assessment a figure will often have to be determined doing the best that can be done in the circumstances but where, as here, a party seeks to put forward a specific case based on how 'but for' injury that party would now be working or how that party would now be operating their own business differently, something more is required than was led here. All evidence is to be weighed according to the proof which it is in the power of one side to have produced and the power of the other to have contradicted. Mr Margriplis-Hampton did not lead the evidence that he might have been expected to lead, based on his own knowledge of his own circumstances, to support his case as put.”[23]
In so saying, the Court of Appeal was clearly recognising that the common law assessment which was called for by the subsection required a broad and flexible approach. Particularly when dealing with young people, as outlined by the New South Wales Court of Appeal in State of New South Wales v Moss. Turning then to consider the evidence on which Mr Al-Banaa based his application.
[23] Ibid at paragraph [16]
(a) The first argument
29To repeat, the primary way his claim was put was that the plaintiff, once he realised he could earn more money as a plumber on a commercial construction site would have commenced such work and be earning at least $135,304 per annum. In that scenario, the 60 per cent threshold was about $81,000.
30The defendant contended that the evidence in support of that argument was wholly lacking. The first attack was that prior to his third affidavit, sworn on the second morning of the application, the plaintiff had never previously evinced such an intention. Rather, he had sworn two affidavits, both of which indicated, very strongly, that his aim, after completing his apprenticeship, was to begin his own business. Furthermore, the defendant pointed to the chronology which suggested that the idea of working on a commercial construction site only arose during the course of the hearing and was never something that he had previously contemplated.
31In support of that argument, the defendant pointed to the fact that the plaintiff had sworn his first affidavit on 30 January 2024. In that affidavit, he had made no mention of working on a commercial construction site at all or made any mention of wanting to work under the particular Award ultimately mentioned by Flexi Personnel which resulted in a wage of $135,304.
32Then, in chronological order, it can be seen that the Flexi Personnel report, which revealed the possibility of working on a commercial construction site, and earning that wage, was dated 11 April 2025. Presumably, that came into the hands of the plaintiff's solicitors shortly after and would have been discussed with him. However, when he swore his next affidavit on 27 May 2025, he made no mention of the Flexi Personnel report or of wanting to work in the role identified in the Flexi Personnel report as a commercial construction plumber, governed by the relevant Award.
33Why that was was completely unexplained. The defendant submitted this lent an air of incredibility to the suggestion, in the third affidavit, that he would have been employed in such a role if not injured. In response, the plaintiff submitted that it was only logical that a worker would deploy their capital asset in the most fruitful way possible and that once he became aware of the option he wanted to pursue a career which is more lucrative.
34While that argument has some initial attraction, it fails to grapple with the fact that at the time of the second affidavit, the plaintiff had in his possession the Flexi Personnel report which identified such a role, but he made no mention of wishing to pursue such a role. Rather, he continued to say that it was his intention to pursue his own business and earn about $120,000 but for his injury.
35I consider this supports a finding that he never contemplated a role in commercial construction under the Award until after the application started and his counsel opened the case. Furthermore, it can be seen from his history, that he had exposure to a number of different plumbing businesses, both when working for Superior and then Splendid.
36His affidavit material did not descend to detail, whether that was working in residential, commercial or industrial. It similarly did not descend to detail whether or not he worked under the relevant Award identified by Flexi, which would have entitled him to a rate of pay in accordance with it. That evidence was in his keeping and might have supported an argument that he well knew of the Award and its rates of pay and was keen to work under it. No such evidence was produced.
37Further to this point, it is obvious that the plaintiff must have worked with other plumbers since the time of his apprenticeship, and even during the course of his own business. No evidence was called from any of those people to detail the transition from any of those businesses to working under the Award in commercial construction.
38That would have been useful to demonstrate that the plaintiff was aware of such a path being open to him, and would support the evidence in his third affidavit that it was a path which was open to him and he could take. I find it difficult to understand the logic that the plaintiff was in his chosen trade from at least mid-2020 and was not aware of an award or opportunity to work on a construction site, which could have led to a greater income.
39While the only qualification listed to work on a commercial construction site is being a registered plumber, it must also be accepted by the Court on the balance of probabilities that he would have been able to obtain such a position. That means the prospect of obtaining a job in such a position must be something which is more likely than not. While it can be accepted that making assessments such as these must be broad and flexible, particularly when dealing with young people, just beginning on their working careers, as the Court of Appeal in Margriplis-Hampton makes clear, much of the evidence on this topic was in the plaintiff's keeping. That is, from his evidence as to his intentions, his past work experience or from colleagues in the trade. None of that material was provided until the third affidavit, and even that was cursory and went only to his intention as at day two of the application.
40In addition to these matters, a further issue arises as to the amount that a plumber of a commercial construction site could earn. On the evidence, I find it is very difficult to assess the actual rate of pay for a plumber involved in commercial construction, as identified in the Flexi personnel report.[24]
[24] PCB 103 and 104
41First, there is real uncertainty about the fares and travel component, which are included in the overall assessment of $135,304 per annum. No attempt was made in evidence or submissions to explain whether those fares and travel allowances per day would be payable if, for example, the plaintiff got a job close to home. Those two figures are very substantial, and substantially change the without injury annualised earnings figure. There is real uncertainty then as to what the actual figure might be, as properly reflects the without injury earnings figure.
42While I am mindful of the principles in State of New South Wales v Moss, and that a broad brush approach should be taken, the evidence here is given by an expert, and there is no particular reason given as to why there has been no effort to interrogate the expert on this point or to have the plaintiff with his knowledge of the trade, explain these matters. This point is particularly acute, given that the plaintiff's solicitors commissioned a supplementary report after this report of 11 April 2024, and it did not deal with this issue.
43While the Court must adopt a broad and flexible approach, it is not allowed to impermissibly speculate, as the Court of Appeal stated in Margriplis. Here, I consider the Court is being asked to speculate in respect of two matters impermissibly: first, as to what work the plaintiff would be occupationally engaged in at the date of the hearing, but for the injury, and secondly, the financial amount payable if he were to be employed as a construction plumber on a commercial site, according to the Award.
44Overall then, I do not accept the plaintiff's evidence in his third affidavit, because it is inconsistent with his earlier affidavits, and seems logically inconsistent with the fact of his work in the trade over four years and the knowledge that must have brought, that such work was available and lucrative, yet he did not disclose it or explain why it was not his preferred option. No attempt was made in his affidavit material to provide evidence as to these matters, or to explain these inconsistencies.
45Second, the state of the evidence as to the actual rate of pay that a plumber on a commercial construction site would earn is insufficiently precise to make findings on the balance of probabilities. There was no effort made to explain it by the plaintiff or by the expert. Despite the expert providing a supplementary report, it did not grapple with this issue.
46As a result, I do not accept the plaintiff's submission in respect of his first argument. I cannot find on the balance of probabilities that as at the date of the hearing, without his injury, he would have been employed in the position identified in the Flexi Personnel report as a commercial construction plumber, working under the Award identified, and earning $135,304 per annum.
(b) The second argument
47The second argument the plaintiff put was that but for his injury, he would have opened his own plumbing business and in that, could have earnt at least $120,000 per annum. In that scenario, the 60 per cent threshold was $72,000. As I have said above, the plaintiff gave evidence in support of this argument in his second affidavit at paragraph [21]. No objection was taken to the form in which paragraph [21] was expressed.
48In accordance with s 172(2) of the Evidence Act, evidence on affidavit may be given where, an affidavit or statement that includes evidence based on knowledge, information or belief must set out the source of the knowledge or information of the basis of the belief.
49The affidavit itself was silent as to whether or not it was given on the basis of knowledge, information or belief. Certainly there was no setting out of the basis of the evidence given. However, no objection was taken to it. It was put by plaintiff's counsel that the plaintiff's assessment was made on the basis of his own knowledge, as the operator of a business doing sub-contracting plumbing. As such, it was said this was a good source on which to base the assessment. The defendant called in aid the statement I have set out from the Court of Appeal in Margriplis.
50Unlike Margriplis, in this case, the plaintiff has only been operating his business for a short period of time. That is, since about mid-2023. He has not filed any income tax returns in respect of the business. The most relevant document on the topic of the earnings of the business is a profit and loss statement.[25] It is somewhat difficult to understand then how the plaintiff can state in his affidavit so categorically, and I quote: 'I could have earnt in excess of $120,000 per annum.' He has neither historical earnings on which to base this statement, nor does he have figures from comparable businesses, which could provide a range.
[25] DCB 120
51Of course, given his young age, it would be unlikely that he would have any historical record to draw upon. No criticism can be made of him in that regard. However, it seems that at least he would descend to detail the hourly rates that he would charge or the daily rates that he would charge, the hours that he could be expected to work and on what sort of jobs. All this material could have assisted in establishing how he had arrived at the figure of $120,000 per annum. It will also be clear from the profit and loss statement that he pays subcontracting workers as to assist the business.
52Similarly, the affidavit does not set out at what rate those workers are paid, how often they are called in to assist, and how the plaintiff proposed to utilise subcontract workers or even employees if he had not been injured. This would have assisted in understanding how much revenue the business would have to generate in order to result in him earning the figure in excess of $120,000 per annum. I touch on these matters to highlight the importance the Court of Appeal placed on the provision of sufficient detail in the affidavit, which was in the keeping of the plaintiff, in order to as best as possible identify the without injury earnings figure.
53Here, no attempt was made to identify with any detail whatsoever how the figure of $120,000 per annum was arrived at. Rather, the Court is asked simply to accept the plaintiff's evidence of this as fact. Without more, it is impossible to do so on the balance of probabilities, because of the lack of historical earnings and the lack of evidence from comparable businesses, which would assist. None of this was presented. Furthermore, the fact of the plaintiff's relative inexperience in operating his own business casts real doubt as to whether or not he can properly assume and make the claim that his without injury earnings figure would have been $120,000 per annum.
54He might certainly have hoped that this would be the case, but hope does not equal the reality of the business world. For these reasons, I cannot find on the balance of probabilities that the plaintiff's without injury earning capacity would have been $120,000 or more. These matters are sufficient to dispose of the plaintiff's application in respect of his loss of earning capacity claim. However, before moving on from that proposition, I do find that the plaintiff has sustained some loss of earning capacity. I do so because it is consistent with all the medical material in the case.
55See the reports of Mr Bittar,[26] and his treating doctor Dr Al-Essa[27], as to the need to get help with heavy tasks. See the reports of Dr Tahir[28], and Dr Merenstein[29] as to what the quantification of that reduced occupational capacity is. I accept that at the moment that the plaintiff is working to his capacity.
[26] PCB 89
[27] PCB 37
[28] PCB 57
[29] DCB 16
56This is because, save for the matters set out above, in respect of his financial earning capacity, I will not otherwise accept that the plaintiff's evidence as to his recreational, occupational and domestic impairment consequences, save for minor matters of inconsistency which I will come to. On those matters, I consider him a witness of truth, whose evidence I accept.
The defendant's submissions on the credit of the plaintiff
57In coming to deal with that submission, I am mindful of what the Court of Appeal said in the matter of Juma v Kone Elevators Pty Ltd[30] at paragraph [79]. Here, the defendant opened its case on the basis that the plaintiff's evidence was not worthy of credit. They raised a number of matters which they submitted supported that proposition. First, it was put that in the most recent report of his long-term treating doctor, dated 23 May 2025,[31] he had taken a history that the plaintiff needed help in and out of the shower and also in putting on his shoes.
[30] [2024] VSCA 217
[31] PCB 37
58The plaintiff, in evidence, confirmed that this was the case, but it was only on occasion, and at times, his father would help him wash his back. However, the plaintiff did not accept other histories that Dr Al-Essa had taken, which is that he required help getting in and out of bed and with his toileting. His evidence was that he could go to the toilet himself and he could get in and out of bed, and that his main problem now was really just pain.[32] He gave evidence that in 2019 the pain was at its worst, and this affected his ability to get in and out of bed and toilet. But that was not the case now.[33]
[32] T15–16
[33] T16, Line (“L”) 10–13
59I consider this to be a good example of the plaintiff volunteering evidence which was patently correct. But on one view against his own interest. The evidence was patently correct because his condition had improved since 2019. As can be seen from the chronology above, he had returned to work and completed his apprenticeship and then had gone on to work in his own business. Video evidence showed him doing a range of tasks associated with his plumbing business.
60All these clearly demonstrated an improvement in his condition, which was not reflected by the contents of Dr Al-Essa's report. The plaintiff was correct to ensure there was no misunderstanding about the true state of affairs, even when it arguably downplayed his injury. However, it was inconsistent with video evidence showing him putting on his shoes, for example.[34] As I indicated, I consider this to be only a minor example of inconsistency going to his reliability. I do not place much weight on this submission.
[34] T17, L4
61More broadly, it was put that the video evidence showed the plaintiff involved in a range of activities which were inconsistent with his affidavit evidence, suggesting that he was much more restricted around the home. For example, the video evidence showed the plaintiff loading his work van with a variety of different equipment such as ladders, piping, and reels. He would then transport them to site and unload such materials. Particularly, he was seen to unload a bag of sand, which he volunteered was 15 to 20 kilograms.
62Similarly, at that site, he was seen to wheel a wheelbarrow loaded with equipment up over uneven ground to the back of the work site. He was also seen carrying two tool bags, which he estimated weighed between 20 and 30 kilograms. It was submitted that being able to do such activities was inconsistent with Dr Al-Essa's report, which recorded difficulty cleaning around the house and doing gardening. It must be remembered that the plaintiff did not ever depose that he could not do such tasks now, but simply that he had difficulty doing them as a result of the pain.
63Furthermore, the plaintiff gave very free evidence about the fact that he continues to go to the gym and attempt to lift weights and work. At times he gave evidence specifically about the weights and the machines that he would use. He gave that evidence in a free and open manner and volunteered it on occasion. It was consistent with the fact that he deposed in his affidavit to returning to work after his injury, and working as an apprentice, and then starting his own business as an apprentice - starting his own business, rather.
64Given these matters are full and frank disclosure, I consider the alleged inconsistency with Dr Al-Essa's report to most likely be a result of mis recording by the doctor, and certainly not to reflect on the plaintiff's credit. It was then put that history given to Dr Merenstein of being able to run,[35] indicated that he could, in fact, run, contrary to his affidavit.[36] The plaintiff was adamant that he had not said this to Dr Merenstein, and there is no affidavit evidence suggesting otherwise or a similar recording by another doctor. I accept the plaintiff's evidence.
[35] DCB 10
[36] PCB 24 at paragraph [60]
65Broadly, then, it was suggested that what the plaintiff was doing in the video was inconsistent with the general tenor of his affidavit material. The first thing to say is that the first tranche of video evidence did show the plaintiff working on a building site. The tasks I have described above that he is seen doing on that site, are broadly consistent with the fact that as he has deposed, he currently runs a plumbing business where he does some hands-on work.
66What is noticeable in the video is that the duties, such as lifting the sandbag or wheeling the wheelbarrow, or lifting the ladder, are isolated incidents. The plaintiff's case is not that he cannot do these tasks on an isolated basis, but he certainly cannot do them on a reliable and consistent full-time basis. And furthermore, that the performance of these tasks does worsen his back pain.[37] Furthermore, the plaintiff deposed needing assistance with some of the heavier tasks.
[37] PCB 24 at paragraph [55]
67To this end, the video evidence showed him depart for one job with his father, and he gave evidence that this was so his father could help him.[38] Furthermore, the plaintiff gave evidence that in the course of the video evidence, he was, in fact, wearing a back brace.[39] Certainly, the video footage is not inconsistent with this statement. The second tranche of video was of no moment. It showed the plaintiff at the front of his house doing some light, loading work into his van, and then driving it to various car parks around the northern suburbs.
[38] PCB 29 at paragraph [19]
[39] T41, L8
68Nothing in the video was inconsistent with the plaintiff's evidence. It will be apparent from the above, that overall, I consider that the plaintiff was a witness of truth. There were minor matters of inconsistency, such as whether or not he could freely put on his shoes. But cross-examination and a review of all the material does not indicate that the plaintiff was unreliable in any significant way. And furthermore, there is no basis for a finding that his evidence lacked credit.
An assessment of the pain and suffering consequences
69I accept that by reason of injuries sustained at Click Plumbing in June 2018, the plaintiff has sustained an aggravation of lumbar spondylosis, with ongoing back pain.[40] That diagnosis is supported by the radiology,[41] and the report of his treating neurosurgeon.[42] Also, Mr Sher considers that the MRI shows disc prolapse with contact of the right S1 nerve root.[43] That injury has resulted in a significant impact on his occupational capacity.
[40] PCB 88
[41] PCB 91
[42] PCB 45
[43] PCB 64
70First, after sustaining the injury in 2018, he had a significant period of time off work. It can be recognised that he also had bilateral hernia problems during this time, and repair which had an impact on him taking time off work. But as Mr Hodgson's reports record, he has recovered well from that surgery, and he is not hindered in his work as a plumber by reason of that condition.[44] The fact of this time off work indicates the severity of the lower back condition that he has sustained. It is to his credit that he did return to work.
[44] DCB 152
71However, all doctors recognise that he is not able to return to his old position. Both Dr Bittar,[45] and Dr Merenstein,[46] are of this opinion. For a young man who has arrived in Australia only in 2016, embarked on a new profession, struggled through his injury to complete his training as a tradesman, this is what I consider to be a very significant blow to have his capacity in that trade diminished. It follows from what I have said in respect of the attack on his reliability and credit, that I accept him broadly as a witness of truth.
[45] PCB 89
[46] DCB 13
72As such, as a young man now at the age of 28 about to turn 29, to suffer from the limitations on his social and recreational activities as he has deposed to, is a major blow, given how long he will have to endure these restrictions into the future. By all accounts, he was a man who enjoyed reasonably simple pleasures such as being with his cousins, playing soccer, or going fishing and camping with them. These things are now lost to him. I have touched upon his inability to run, and that deprives him of the ability to play soccer.
73He gave evidence in respect of fishing, that the reason he can no longer do this was because he and his cousins would drive long distances from their home in Mickleham to go fishing north. Driving, in particular, is one of the things that he struggles with, having to stop every 40 to 45 minutes or so. As such, he is not able to go with them to fish. Camping is another activity which he struggles with, given that sleeping at the best of times is difficult with his back. And his sleep is broken, and he gets only limited sleep. I accept that these activities are lost to him. And in addition, that he has ongoing, broken, limited sleep.
74It was put that when he takes melatonin, he can sleep normally. However, I accept the plaintiff's evidence that his sleep is only for limited hours of about four to six at a time, and the fact that he requires medication to sleep indicates the severity of his condition. I accept that it intrudes on what should be a period of rest in a working person's life.[47] I accept that the plaintiff is in pain, which is daily, and worsens with heavy activity. I accept his affidavit on this point. I accept that he has flareups once every two weeks.
[47] PCB 36
75This is confirmed by Mr Sher's notation.[48] It was put that he only takes over the counter medication such as Panadol and Nurofen, as recorded by Dr Merenstein.[49] I do not accept that evidence, and I accept that the plaintiff, in addition, takes prescription medication such as Fenac or OxyNorm. On occasion he takes OxyNorm when he has a flareup.[50]
[48] PCB 63
[49] DCB 11
[50] PCB 21 at paragraph [36]; Report of Dr Weekes at PCB 50; Report of Mr Bittar at PCB 86
76In making that overall assessment as to whether or not the impairment consequences constitute serious injury, I am also mindful of the fact that the plaintiff has retained some capacities. Quite clearly, he can work and earn an income. He can run his own business, and at times, employ sub-contractors. He is obviously engaged in some administrative work in obtaining and quoting for jobs and completing the paperwork in respect of the business. While he lives at home, he can socialise to some degree and gave evidence about attending at his sister's wedding.
77I take these matters into account in the overall assessment. In that assessment, however, I do consider it a fair description of the plaintiff to describe him as a pragmatic and stoic worker who has persisted as best he can in the face of very significant adversity by reason of the workplace injury. This is demonstrated by the chronology which shows that he has always attempted to return to work and find a way to accommodate his injury to earn.
78It will be apparent from the above, then, that I consider that the plaintiff is entitled to a determination that he has sustained a serious injury for pain and suffering purposes. I am unable to make findings as to the relevant test required under the Act in respect of the claim for loss of earning capacity. That is for the reasons set out above. For that reason, I will dismiss this aspect of the plaintiff's claim. That concludes my reasons.
0
4
0