Aleadani v Don Mathieson and Staff Glass Pty Ltd
[2014] VCC 1403
•9 September 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-11-03664
| SALAH ALEADANI | Plaintiff |
| v | |
| DON MATHIESON & STAFF GLASS PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE DYER | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 and 28 May 2014 | |
DATE OF JUDGMENT: | 9 September 2014 | |
CASE MAY BE CITED AS: | Aleadani v Don Mathieson & Staff Glass Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 1403 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – back injury – incidents over course of employment as a glass worker – substantial modified duties after injury – redundancy – claim in respect of pecuniary loss and pain and suffering – credit – abandonment of claim for pecuniary loss – assessment of pain and suffering consequences
Legislation Cited: Accident Compensation Act 1985
Cases Cited:Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1, Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260, Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181
Judgment: Application for leave dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D Purcell with Mr M Fogarty | Maurice Blackburn |
| For the Defendant | Mr R Stanley | Lander & Rogers |
HIS HONOUR:
Introduction
1 The plaintiff, Salah Aleadani, seeks leave to commence common law proceedings against the defendant for injuries received in the course of his employment between 2002 and 2005 with particular emphasis on an episode of heavy lifting in January 2005. He relies upon paragraph (a) of the definition of serious injury in s134AB(37) of the Accident Compensation Act 1985 (“the Act”). The back is identified as the body function said to be relevantly lost or impaired.
2 The plaintiff’s claim was initially in respect of leave to commence a proceeding both for pecuniary loss and pain and suffering. During the course of the hearing, the claim for leave in respect of pecuniary loss damages was abandoned and the remaining matter for determination is whether the plaintiff has satisfied me on the balance of probabilities that he suffers a serious injury in terms of the pain and suffering consequences of his back injury.
3 The plaintiff is forty-eight years of age and came to Australia in 1995. He was originally from Iraq, but left that country at the age of about twenty-three when war broke out and he then lived in Saudi Arabia for a number of years as a refugee. After arriving in Australia, he learned some English and obtained process work in a factory for a period of one or two years. After a further period of agency work, he commenced employment for the defendant or its predecessor at premises in Clayton South.
4 The plaintiff has filed affidavits sworn in March 2011 and May 2014 in support of his application. Additionally, he was cross-examined. There was no other viva voce evidence put before me, although both parties relied upon quite extensive medical material. The defendant further relied upon surveillance material to attack the plaintiff’s credit.
5 There is no issue between the parties that the plaintiff suffers a degenerative back and there is relatively little disagreement as between the various medical practitioners on the nature and extent of injury. Ultimately, the consequences fall to be assessed and much depends on the reliability of the plaintiff if the burden of proof is to be discharged.
6 To that extent, the credit of the plaintiff, which was put in issue at the commencement of the hearing, was important to my final determination. In that regard, it was perhaps significant that the plaintiff instructed his counsel to withdraw the application to claim damages for pecuniary loss after the conclusion of his cross-examination. As a result of this, the only matter remaining for my determination was whether the plaintiff had established an entitlement to leave to claim damages for the pain and suffering consequences of his back injury.
The lay evidence
7 The plaintiff had sworn an initial affidavit in support of his application on 31 March 2011. A further affidavit had been sworn shortly prior to the hearing on 20 May 2014. Both affidavits were tendered in evidence before me.[1] Without reciting the totality of the affidavit material, it is useful to set out the matters which I regarded as relevant in the determination of this application. From the first affidavit I noted:
[1]Exhibit A, pages 13–21
· The plaintiff commenced at the defendant’s factory in Clayton South in 1999. He was then working for an organisation known as DMS.
· The work was very heavy and involved a lot of lifting and bending. He was required to lift large sheets of glass and place them in machines. He was operating a double-edge machine.
· The plaintiff initially had back pain in 2002 and was sent to the factory doctor in Valewood Clinic. He had one week on light duties and then returned to normal work.
· Similar episodes of back pain again required treatment at the Valewood Clinic and some physiotherapy in 2003 or 2004. Once again, the plaintiff was on light duties for a short period.
· In approximately 2004, whilst travelling in Iraq, the plaintiff slipped in a shower and suffered back pain, but recovered quickly.
· In January 2005, the plaintiff experienced what he described as severe back pain with pain extending into the right thigh as a result of lifting very heavy glass. He again attended the Valewood Clinic and was put on light duties and referred for diagnostic tests. He had a CT scan and was referred to a neurosurgeon who advised against surgery but told him he had an injury to a spinal disc.
· The plaintiff essentially returned to work, but on light duties, after the January 2005 episode. He stated that he tried to return to normal duties but was never pain free.
· The plaintiff had a further flare-up of back pain in 2007 and underwent a further CT scan. He was taking medication whilst working at that time.
· The plaintiff continued to have further back pain with flare-ups requiring medication in 2008 and 2009. In 2009, he was referred to another neurosurgeon who arranged a further MRI scan and advised that surgery would not assist.
· The plaintiff continued performing light duties and was made redundant in February 2010.
· The plaintiff has had ongoing back pain since that time, with symptoms into his legs aggravated by activities such as sitting or walking for too long. Twisting and bending causes an increase in pain.
· The plaintiff takes medication, including Panadeine Forte, but tries to avoid taking it each day as it causes stomach problems. He remains under the care of doctors at the Valewood Clinic.
· The plaintiff has three young children, the eldest being five and a half (as at March 2011). His wife does not work and he has suffered financially.
· The plaintiff is restricted in his ability to do domestic activities and play with the children. He tends to be more careful with physical aspects of the housework.
· The plaintiff’s ability to sleep has been affected, as has his personal life with his wife.
8 In the more recent affidavit, the following matters were noted by me:
· The plaintiff had a further MRI, as requested by a neurosurgeon in November 2012. He was offered an epidural injection or microdiscectomy, which he declined.
· The plaintiff suffers constant low back pain, worse in cold weather, and pain in both legs, the left worse than the right. Occasionally, pain shoots down to his feet and occasionally he suffers numbness in his legs.
· The plaintiff continues to have flare-ups in pain brought about by activity, lengthy sitting, standing and twisting, and bending can aggravate the pain, as can driving for long periods.
· The plaintiff remains under the care of a general practitioner, Dr O’Keefe, who he sees every four to five weeks. He takes Panadeine Forte when the pain is really bad and Lyrica and Panadol Osteo on a daily basis. He also uses Voltaren cream. He is wary of too much medication as it causes stomach problems and drowsiness. He attends a mosque once per week and usually drives his children to and from school. He has difficulty with heavier household tasks such as vacuuming and heavier cleaning.
· The flare-ups of pain have become more frequent and, when they occur, he is usually required to stay at home and will occasionally have to lie down. With severe pain, he has difficulty sleeping and suffers occasionally from broken sleep. He must take care in what he does with the children.
9 The plaintiff was cross-examined and I noted the following matters as relevant to my determination:
· The plaintiff first had back pain as early as 1999.[2]
[2]T18, L17–20
· He had further back pain when in Iraq, slipping in the shower.[3]
[3]T18, L23–25
· The plaintiff had a further episode of back pain in 2005 requiring a referral to Mr Xenos and CT scans performed.[4]
[4]T18, L26–29
· After the 2005 incident he worked on a different machine doing lighter duties for approximately four years until the bosses changed at work.[5]
[5]T20, L8–12
· He did that work until he was made redundant in February 2010.[6]
[6]T20, L15–16
· He was doing full-time hours at that time.[7]
[7]T20, L17–19
· Working on the single-edge machine still required a lot of lifting, even on modified duties.[8]
[8]T20, L30–31
· The plaintiff had a lifting limit of 15 kilograms prescribed for modified duties in about October 2009.[9]
[9]T21, L18–25
· In the months before being made redundant, his general practitioner was Dr O’Keefe at the Valewood Clinic.[10]
[10]T22, L25–28
· The plaintiff was told not to take medication at work because it was making him drowsy, and he was not allowed to operate the machine with any tablets.[11]
[11]T23, L1–5
· The plaintiff had developed leg pain before he had finished work.[12]
[12]T24, L2–18
· A history given to Mr Bittar in May 2012 of back pain being sharp and burning pain 90 per cent of the time was correct.[13]
[13]T27, L2–10
· A range of activities worsened the pain, including walking for more than ten minutes on flat ground.[14]
[14]T27, L18–23
· The plaintiff had told Ms Green, a vocational assessor, in July 2012 that the left leg was most painful. Sitting for more than an hour, standing for more than an hour, or walking for more than 15 minutes would aggravate the pain, as would using stairs.[15]
[15]T28, L1–11
· When reviewed by Mr D’Urso in October 2012, the plaintiff agreed that he had stated his condition seemed to be worsening.[16]
[16]T28, L21–31
· When examined by Mr Bittar in November 2013 the plaintiff related his pain severity as around 8 out of 10, with the left leg more severely affected than the right. He was then taking Lyrica, Panadeine Forte and Panadol Osteo on a daily basis.[17]
· When reviewed by a vocational assessor in December 2013, she had correctly recorded “Constant severe pain and restricted movement in the lower back. Pain that radiated into the buttocks and both legs but the left side being worse.”[18]
· The plaintiff became aware of problems using the stairs about two years before the trial, whilst attending school.[19]
· His days involved pottering around home, driving the children to school, doing the shopping, and attending medical appointments.[20]
· The plaintiff has no particular hobbies, but his sleep is affected. His present level of pain he assesses at 8.5 out of 10.[21]
· The plaintiff had ceased going to English classes because he could not concentrate or understand and also had difficulty sitting at computers for lengthy periods (a maximum of two hours).[22]
· The plaintiff confirmed that at present he was doing things such as occasional shopping, washing the car, or vacuuming the car.[23] He would use the home vacuum cleaner for this.[24] He takes the children to school almost every day and does 100 per cent of the shopping.[25] He does more of the housework than he used to because of his wife’s recent illness.[26]
· The plaintiff had two vehicles registered in his name, a Subaru and a Laser.[27]
· The plaintiff had no particular hobbies that had been affected. His religion required him to attend a mosque once per week.[28]
[17]T29, L9–19
[18]T30, L1–11
[19]T31, L5–11
[20]T31, L27–31
[21]T32, L1–10
[22]T36, L1–12
[23]T39, L4–10
[24]T40, L10–11
[25]T40, L20–24
[26]T40, L27–29
[27]T41, L23–26
[28]T43, L1–13
10 The plaintiff was shown surveillance footage taken on 28 and 29 June 2013 which was tendered in evidence.[29] Much of the surveillance was taken outside the plaintiff’s home in Clayton South. The video showed the plaintiff with a number of vehicles parked within the front area of his property and in the street immediately outside. The videotape showed the plaintiff conversing with two women and inspecting a red vehicle later in the morning.
[29]Exhibit 2
11 After the videotape was shown, the plaintiff was asked a series of questions in cross-examination. I found the following matters of relevance:
· The plaintiff denied selling the red vehicle, and stated that he had known the women for approximately fifteen years, that one of the women had bought the car, and he was arranging for it to be roadworthied, but it would be registered in his name.[30] He denied taking money for the service provided by him, but agreed she offered him a gift.[31]
[30]T47, L28–T48, L27
[31]T49, L6–29
· The plaintiff had taken a few cars for roadworthies over the years or for other work to the mechanic providing the roadworthy on this occasion.[32]
[32]T49, L30–T50, L2
· Before his injury the plaintiff would buy and sell cars from time to time and take them to this mechanic to get roadworthied.[33]
[33]T50, L4–12
· Before his injury the plaintiff would purchase old unregistered unroadworthy vehicles, re-register them with roadworthies, and sell them, probably making some money. This was done quite regularly before his back injury.[34] He denied doing this since his back injury, stating that his friend had offered him a gift which he did not take.[35]
[34]T51, L1–7
[35]T51, L11–21
· He agreed that he had done more than ten cars a year since being made redundant in February 2010.[36] He again denied making any money or profit.[37]
· The plaintiff agreed he might buy an old car at the auctions, not registered, and his mechanic would do some work on it, get a roadworthy, and sell it; but it was for friends.[38]
· The plaintiff would pay to purchase the car at auction, and pay for the work to be done for the roadworthy, and then be reimbursed.[39] He would sometimes advertise the vehicles, such as when persons went overseas.[40]
· When further pressed on his reason for this activity, the plaintiff explained that it was done mainly for members of his community and not for money.[41]
· The cars obtained by the plaintiff could stay at his house for periods between two weeks and approximately six months.[42] He agreed that there were currently five vehicles on his front lawn or his nature strip in addition to the two vehicles that he owned.[43]
· He agreed doing some mechanical work himself involving bending into the engine bay, placing a jack under the vehicle, and working underneath the vehicle. He denied it was a hobby to work on vehicles.[44]
· He did not believe it necessary to tell any of the doctors of his involvement working on vehicles or doing mechanical work.[45]
· He agreed he had not told the vocational assessor, but denied he did not do so as he thought it would affect his case.[46]
· The plaintiff rejected the suggestion that someone with pain averaging 8 out of 10 does not engage in mechanical work on vehicles. He denied exaggerating the level of his pain.[47]
[36]T52, L6–11
[37]T52, L15
[38]T53, L23–29
[39]T55, L1–7
[40]T55, L8–14
[41]T65, L25–T66, L4
[42]T68, L23–27
[43]T72, L15–17
[44]T73, L2–16
[45]T73, L23–26
[46]T74, L18–21
[47]T75, L14–19
12 Mr Aleadani was shown a further DVD taken on 14 and 15 December 2011. This was also tendered in evidence.[48] This DVD showed the plaintiff inspecting a car outside a mechanical workshop and performing deep bends whilst looking under the bonnet. It also showed, to my observation, the plaintiff entering a vehicle without any obvious hesitation or restriction. On the second date (15 December 2011), mid-morning, the plaintiff was shown leaving the previously identified workshop and walking towards his home. It later showed him entering another red-coloured vehicle, displaying no obvious difficulty.
[48]Exhibit 3
13 The cross-examination continued. I noted in particular:
· The silver vehicle shown with the bonnet raised was recognised by the plaintiff.[49]
· The plaintiff agreed that he would use a garage jack on vehicles and would change wheels and change brake pads, which he would do sitting down next to the car.[50]
· The plaintiff stated he would do mechanical work of some type between once a week and once a month.[51] The plaintiff denied doing heavy mechanical work for roadworthies.[52]
· The plaintiff again denied making any monetary profit from the mechanical works.[53] He further denied that he was overstating the degree of his pain.[54]
· The plaintiff further agreed that he would sometimes get spare parts from the mechanical workshop shown in the DVD on 15 December 2011.[55]
· He could not remember the parts he had bought, but agreed that before his back injury he may have bought tail-lights, a radiator support, and second-hand tyres.[56]
[49]T83, L17–18
[50]T85, L4–28
[51]T86, L24–26
[52]T87, L5–6
[53]T89, L5–6
[54]T89, L28–31
[55]T93, L11–14
[56]T94, L13–19
14 Video stills taken on 15 December 2011 were then shown to Mr Aleadani. He was asked to mark vehicles from the video stills. This document was tendered as Exhibit 1. I noted it showed three vehicles in addition to the plaintiff’s own vehicle outside his property on that date. In further cross-examination concerning his activities with motor vehicles, the plaintiff agreed that he would sometimes take photographs of cars and place them on websites including the “carsales” websites.[57]
[57]T100, L18–22
15 The plaintiff was cross-examined about a medico-legal examination with Mr Shannon in February 2012, and agreed he had not told Mr Shannon about any of his endeavours in relation to cars.[58]
[58]T103, L26–27
16 He was also asked about his current level of medication. He stated he would take Panadol Osteo on a daily basis, but was not taking Panamax. He was also taking Lyrica but tried to avoid Panadeine Forte, which gave him bad side effects. He agreed that he might take Panadeine Forte three or four times per week. He would take Lyrica sometimes once a day and sometimes twice a day.[59]
[59]T107, L4–T108, L3
17 The plaintiff was re‑examined, partly in relation to the circumstances prior to him being made redundant. He was asked further questions concerning his current level of pain and his reaction to medication. I noted in particular:
· The pain was in the back and in the legs in both thighs, and the left hip, thigh and whole leg down to the calf.[60]
· The plaintiff tries to avoid taking Lyrica as it affects his nerves, and now takes it at night-time. He takes Panadol Osteo in the morning but sometimes cannot take it for religious reasons when fasting.[61] With Panadol Osteo he would take three per day, and still Panadeine Forte about six, seven or eight times per week, but it produced side-effects of indigestion, dizziness and nausea.[62]
· Mr Aleadani’s wife’s health was affected by respiratory problems.[63]
· In relation to the work on cars, the plaintiff agreed that before he was injured he would do heavier work. He still owned an engine lifter, but did not have a workshop at home.[64]
[60]T115, L28–T116, L1
[61]T116, L26–T117, L5
[62]T117, L29–T118, L13
[63]T119, L2–4
[64]T120, L30–T121, L15
The Medical evidence
18 The plaintiff relied upon medical reports from Dr Lyn O’Keefe, the treating general practitioner,[65] Mr Paul D’Urso, the treating neurosurgeon,[66] together with reports of some historical significance from a physiotherapist and an earlier neurosurgeon. The reports of the current treating practitioners are of particular significance, both in terms of diagnosis and assisting my decision as to the extent of consequences flowing from the plaintiff’s accepted back injury.
[65]Exhibit A, pages 24–29
[66]Exhibit 1, pages 31–54
19 In August 2013 Dr O’Keefe commented:
“He continues to have symptoms from his chronic back condition of back and leg pain which limit his physical abilities.”[67]
[67]Exhibit A, page 30
20 Dr O’Keefe noted that the plaintiff had commenced Lyrica for management of his symptoms, with mild improvement, and was continuing to take Panadeine Forte on a limited basis. She regarded him as being unfit for unrestricted manual work, but fit for restricted duties with minimal lifting and certain other restrictions. This opinion would probably be consistent with the level of activities depicted in the surveillance material.
21 Mr D’Urso diagnosed the plaintiff with multi-level lumbar disc degeneration and prolapse in his first report in 2010.[68] In his later report in January 2013 he noted that he had seen the plaintiff on 22 October 2012, and referred also to an MRI scan taken on 17 November 2012.[69] His comment at that time was that the MRI scan demonstrated:
“[L]eft paracentral L1‑2 disc prolapse with moderate canal stenosis with subarticular L2 nerve-root impingement. There was evidence of a right-sided L5‑S1 disc prolapse with some right-sided S1 nerve-root impingement. Degenerative disc disease was noted at each level except the L4‑5 level, which would appear to be satisfactory.”[70]
[68]Exhibit A, page 32
[69]Exhibit A, page 129
[70]Exhibit A, page 34
22 In that report he recommended the option of an epidural injection or a microsurgical discectomy procedure, but noted that the plaintiff had declined these options and wished to continue with medical management.
23 The plaintiff relied on reports from Mr Hew Gibbs, physiotherapist, in 2009 and 2010.[71] This was consistent with the current medical diagnosis from the plaintiff’s treating practitioners. Further, a report from Mr Chris Xenos, neurosurgeon, who had seen the plaintiff on one occasion in June 2005, was also supportive of a diagnosis of disc degeneration involving some spinal nerve compression at that time.[72]
[71]Exhibit A, page 22–27
[72]Exhibit A, page 55–56
24 Medico-legal opinions were obtained from Dr Clayton Thomas, consultant in rehabilitation and pain medicine, and Professor Richard Bittar, neurosurgeon. Both doctors had examined the plaintiff in 2012 and 2013. Their opinions are consistent with a diagnosis of a degenerative lower back injury with nerve-root involvement. Dr Thomas commented specifically on the November 2012 MRI in expressing an opinion as to the permanency and likely progressive nature of the plaintiff’s condition.[73] Professor Bittar diagnosed the plaintiff as suffering from an aggravation of lumbar spondylosis with lower back pain radiating into both legs. He also diagnosed lumbosacral radiculopathy. He last saw the plaintiff in November 2013 and commented on reviewing the most recent MRI taken in November 2012. His most recent opinion was that the plaintiff “is likely to suffer from significant pain and disability into the foreseeable future”.[74]
[73]Exhibit A, page 62
[74]Exhibit A, page 84
25 The defendant had obtained orthopaedic opinions from Mr Michael Shannon in August 2010 and February 2012.[75] Mr Shannon regarded the plaintiff as suffering from “mechanical back pain associated with multi-level lumbar disc degeneration and disc bulging.”[76] He regarded the plaintiff as being unfit for work involving prolonged or repetitive bending or heavy lifting. The defendant had also obtained a report from Dr Dominic Yong, a specialist occupational physician, who reported to the defendant’s solicitors after seeing the plaintiff in July 2012.[77] He diagnosed the plaintiff as “a man who has chronic low-back pain from multi-level lumbar disc degeneration. This is likely to be complicated by a deconditioning process.”[78]
[75]Exhibit 4, pages 21–28
[76]Exhibit 4, page 28
[77]Exhibit 4, pages 29–35
[78]Exhibit 4, page 33
26 In view of the opinions provided by Mr Shannon and Dr Yong there was no further material sought on behalf of the defendant, and quite properly no application to cross-examine any of the plaintiff’s treating doctors or medico-legal consultants.
27 The parties have each tendered material from vocational assessors as part of their case, but in light of the abandonment of the leave sought in respect of pecuniary loss damages this material is only relevant in terms of the consistency or otherwise of the plaintiff’s histories.
Analysis
28 The only issue to be determined in this application is whether the consequences of the plaintiff’s back injury, in terms of pain and suffering and interference with his enjoyment of life, satisfy the “at least very considerable” test. The Court of Appeal has provided some guidance in terms of the classification or categorisation of pain and suffering consequences in cases such as Haden Engineering Pty Ltd v McKinnon,[79] Dwyer v Calco Timbers Pty Ltd (No 2),[80] and Stijepic v One Force Group Aust Pty Ltd.[81] Although the principles expressed by the appellate courts must be applied, the totality of those principles, be they related to the measurement of pain, the assessment of what is retained, the interference with sleep patterns, or the acknowledgment of a particular plaintiff’s stoicism, ultimately leave the balancing exercise to be determined on the particular evidence in each case.
[79](2010) 31 VR 1
[80][2008] VSCA 260
[81][2009] VSCA 181
29 The surveillance material put to the plaintiff is significant in my assessment, and I accept it is more probable than not that the plaintiff is a lot more active in his involvement with motorcars than he was prepared to admit in the witness box. Frankly, the affidavit material sworn by the plaintiff paints a very bleak picture of his ability to perform daily activities, whereas the surveillance video satisfied me that as a matter of probability the plaintiff is carrying on a significant level of activity in buying and selling cars. This level of activity is inconsistent with pain levels deposed to in Mr Aleadani’s affidavits. Whether or not he has actually profited in this endeavour is not a matter which I need to decide.
30 The whole of the medical evidence is consistent with a man who has suffered a “light work back”. The plaintiff is forty-eight years of age, and the medical evidence satisfies me that the level of symptomatology from this back injury is likely to continue at least at its present level indefinitely into the future. I am also satisfied that Mr Aleadani does require regular medication, but the extent of his complaints of pain, as expressed to the various medical examiners, is in my view exaggerated. I do not believe it consistent with a person suffering what is properly described as pain of 7.5 out of 10, (as related to Mr D’Urso in November 2012), as enabling a person to engage in what appears to be a no‑profit or low-profit activity which of necessity requires him to visit car repairers and suppliers, make attendances on VicRoads, and negotiate on behalf of friends or other persons. My own observation of the surveillance material, particularly in Exhibit 2, showed the plaintiff performing a deep bend of greater than 90 degrees when looking under the bonnet of a silver car. He was also seen to get into a car without any apparent caution or hesitation. There was nothing I observed in the surveillance material to show that the plaintiff was in any pain whatsoever.
Conclusion
31 I am prepared to accept that the plaintiff does suffer a level of back pain for which he takes regular medication, including Lyrica and occasional Panadeine Forte. I accept that he has three young children and a wife who is unwell. These matters must throw more responsibility for domestic chores on him. I would regard such consequences as significant but no more.
32 Even if I am prepared to accept that the plaintiff has “good days and bad days”, as is often the case in many similar applications, I must take into account that for one reason or another, in 2011 and 2012 a number of persons were dealing with the plaintiff and he with them in relation to work being performed on their motor vehicles. The plaintiff accepts that he would attend car auctions, attend VicRoads, and attend at least one motor repairer. These are not activities which in my view are consistent with a person who suffers pain and suffering consequences which have exceeded the level of being significant or marked to the extent that they are properly described as at least very considerable.
33 I am also concerned that no history of the activities in relation to the motor vehicles was given to either treating doctors or medico-legal examiners. I believe it is more probable than not that the histories given to the doctors, and indeed the material in the plaintiff’s affidavits, was done so with at least an unconscious intention to make the most of his symptoms in order to persuade me to grant him leave.
34 The plaintiff bears the onus of proof in these applications. The plaintiff has not satisfied me that the pain and suffering consequences from his accepted back injury are properly described as at least very considerable and more than significant or marked. The application must be dismissed.
35 I will hear the parties in relation to formal orders and the question of costs.
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