Andrews v Pacific Dunlop Limited and SGS Australia Pty Ltd

IN THE COUNTY COURT OF VICTORIA

Unrevised

Not Restricted

AT MELBOURNE
CIVIL DIVISION
DAMAGES - COMPENSATION LIST

SERIOUS INJURY DIVISION

Case No. CI-09-02080

CI-09-04049

WARREN JOSEPH ANDREWS	Plaintiff
v
PACIFIC DUNLOP LIMITED	First Defendant
SGS AUSTRALIA PTY LTD	Second Defendant

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JUDGE:	HER HONOUR JUDGE K L BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:	25, 27, 28, 29 January and 18 March 2010
DATE OF JUDGMENT:	10 May 2010
CASE MAY BE CITED AS:	Andrews v Pacific Dunlop Limited and SGS Australia Pty Ltd
MEDIUM NEUTRAL CITATION:	[2010] VCC 0464

REASONS FOR JUDGMENT

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Catchwords: ACCIDENT COMPENSATION – serious injury application – sections 135A and 135C Accident Compensation Act (Vic) 1985 – identification of injury during relevant period – injury to the lumbar spine and psychiatric injury – timing of plaintiff’s knowledge of severity of incapacity – assessment of plaintiff’s subjective knowledge – section 134AB- impairment to the lumbar spine- pain and suffering – loss of earning capacity.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr B Collis with	Melbourne Injury Lawyers Pty Ltd
Mr I Ingram
For the First Defendant	Mr J Batten	Thomas Playford Cutlers
For the Second Defendant	Mr P Elliott QC and	Hall & Wilcox
Ms A Sheehan
HER HONOUR:

Preliminary
1 By Originating Motion No. CI 09-02080, it is alleged the plaintiff suffered injury to his lumbar spine with consequential psychiatric injuries in the course of his employment with the first defendant as a forklift driver and press operator between 1 September 1985 and 1990 (“the relevant period”).
2 The plaintiff seeks leave, pursuant to s.135A(4)(b) of the Accident Compensation Act 1985 (“the Act”), to bring proceedings at common law against the first defendant.
3 The body function said to be lost or impaired is the lumbar spine and psychiatric impairment.
4 It is in issue between the parties that the plaintiff has sustained a “serious injury” within the meaning of s.135A(19) of the Act.
5 Pursuant to s.135AC(a) of the Act, any application for determination pursuant to s.135A(2B) must be issued before 1 September 2000. The plaintiff’s application was not issued until 23 December 2008 and is therefore, prima facie, out of time, and he is precluded from bringing proceedings. However, pursuant to s.135AC(b):
“If the cause of action arose before 12 November 1997, and the incapacity arising from injury was not known until after 12 November 1997 … .”

The plaintiff may bring his application providing he does so:
“… before the expiration of three years after the date the incapacity
became known.”

6          Thus, the plaintiff must prove, the onus being upon him, that prior to 23 December 2005 (“the said date”), he was not aware of the serious injury consequences of the injury to his back arising from his pre November 1997 employment.
7 By Originating Motion No. CI-09-04049, the plaintiff also brings an application for leave to bring proceedings for damages pursuant to Section 134AB(16)(b) of the Act for injury suffered by him in the course of his employment with the second defendant between 1 March 2005 and late 2006 (“the period of employment”).
8          The plaintiff seeks leave to bring proceedings for damages in relation to both pain and suffering and loss of earning capacity.

(i)

Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages;
(ii) The impairment of the body function must be permanent;

(iii)

The plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, subsections (19) and (38)(e) impose specific burdens in relation to a claim for loss of earning capacity;

(iv)

By subsection (38)(c) of the Act, the impairment must have consequences in relation to each of pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being “at least very considerable” and “more than significant” or “marked”;

(v)

I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders;

(vi)

Where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of forty per cent or more, both at the date of hearing and permanently thereafter;

(vii)

Subsections (38)(e) and (f) recite the formula by which loss of earning capacity is to be measured;

(viii)

Subsection (38)(g) requires questions of rehabilitation and retraining be considered in determining whether the forty per cent loss has been established;

(ix)

Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases;

(x)

I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 and Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602 in reaching my conclusions.
9 The plaintiff brings this application pursuant to clause (a) of the definition of serious injury to be found in Section 134AB(37) of the Act. There, “serious injury” is defined relevantly as meaning permanent serious impairment or loss of a body function.
10        The impairment of body function relied upon is the lumbar spine.
11        Counsel for the second defendant made a brief submission that the plaintiff had not suffered a severe mental impairment pursuant to clause (c). An application in this regard was not referred to by counsel for the plaintiff in the outline of the plaintiff’s case, in opening or in written submissions with the total focus on the claim relating to physical injury.
12        Accordingly, I am not required to make a finding in this regard.
13        The plaintiff relied upon four affidavits and gave viva voce evidence. He was cross-examined. Dr Landsberger was required to attend for cross- examination, as was Mr Radley, psychologist. The second defendant relied upon an affidavit sworn by Dianne Chatwin.
14        In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
15        Written submissions were made by counsel for the plaintiff, and then responded to by counsel for the defendants. Counsel for the plaintiff then provided further submissions in reply and the parties spoke to their submissions on 18 March 2010.

The Plaintiff’s Evidence
16        The plaintiff is presently aged forty nine, having been born on 26 July 1960. After completing Year 10, he spent two years in the Army Reserve on a part time basis.
17        The plaintiff was first employed as a sorter with Alsco Linen for about a year. Between the ages of nineteen and twenty seven, he worked as a casual cleaner at the MCG.
18        In between jobs, the plaintiff undertook work such as fruit picking and other casual cleaning work. Between 1982 and 1984, he worked as a part time cleaner at the Toorak Drive-In.

Employment with the First Defendant
19        From early 1984 until early 1990, the plaintiff was employed by Tontine Industries, a business owned and operated by the first defendant. He worked there as a forklift driver and as a press operator.
20        When the plaintiff commenced work with the first defendant in 1984 he worked as a press operator in the laminating area using a spray gun, applying glue, operating a press by pushbutton, and using a heated knife. He was made a leading hand after about a year or so.
21        In the early days working for the first defendant, the plaintiff had to pick up a lot of material from the floor but by 1988 the system changed. In cross examination he disagreed that the work he did before May 1989 was light.
22        The plaintiff was employed as a forklift driver from May 1989. Ninety per cent of the forklift work involved driving. He disagreed with production supervisor Mr Plese’s statement that there was no manual handling involved in this job.
23        In the course of this employment, the plaintiff initially suffered lower back injury. He deposed that he understood he first suffered symptoms during April 1988 whilst working in the laminating department and undertaking continuous lifting and bending work (“the injury”).
24        The plaintiff deposed that he consulted a doctor at Dr Burgin’s practice and he was given two days’ sick leave and put on light duties for two weeks. In cross examination the plaintiff said that he could not recall which doctor he saw in 1988. He only remembered being told to rest and being prescribed painkillers. The plaintiff confirmed he had about two weeks on light duties and his back cleared up. After that time he was able to do work without any problems until mid 1989.
25        The following year, Dr Burgin organised for a CT scan to be performed on 5 July 1989 which the plaintiff understood disclosed a mild annular disc bulge at L4-5.
26        The plaintiff deposed that his back continued to cause him problems from time to time thereafter, and on 21 July 1989, he woke with a twinge in his back and the following day found it difficult to move because of back pain.
27        The plaintiff confirmed these matters in a statement made on 16 August 1989, following this aggravation of his back condition in July that year.
28        Following that aggravation, the plaintiff was off work until 11 July 1989 and returned on light duties until 25 July 1989. He was then able to do his usual duties although he still had back pain from time to time which required him to have a rest. The plaintiff could not say how this injury had occurred but his doctor and physiotherapist thought it was a recurrence of his 1988 injury.
29        The plaintiff made a further statement on 3 May 1990 in relation to a claim submitted to his employer at that time, HN Sheet Metals (“HN”), on 24 April 1990. He described the nature of his duties with HN, stating that there was not a great deal of lifting involved.
30        The plaintiff confirmed the circumstances of his original back injury in April 1988 and his return to normal duties in May 1988. In cross examination the plaintiff said that he did not believe his back caused him pain from time to time on his return to work at that time.
31        The plaintiff stated that on 22 June 1989, he suffered a recurrence of back pain whilst driving his vehicle home from work. The following morning he was unable to move due to back pain which resulted in absences from work until 17 July 1989, when he returned to light duties until 25 July 1989. He remained in Tontine’s employ until 17 January 1990, when he resigned to commence work with HN which he performed until 12 April 1990 with no injury or accident to his back. He suffered a recurrence of back pain on 19 April 1990 whilst at home hanging up a coat.
32        In cross examination, the plaintiff could not remember something happening in June 1989. In particular, he could not recall leaving work because his child had run away. The plaintiff had no recollection of reporting to the first defendant that he woke up with lower back pain.
33        The plaintiff could not recall being off work in 1989. He then said he could recall having time off in June and July 1989 and that he was back at work by 11 July.
34        After 1989 the plaintiff continued doing his work without medication or attending the doctor. In January 1990, he commenced work with HN, working as a spray painter. His work involved him assisting tradesmen in the manufacture of exhaust and fume extraction systems. He was required to cut sheets of metal on a guillotine and fold sheets on a press.
35        The plaintiff deposed that during a temporary closure of HN’s factory over Easter 1990, he suffered a recurrence of back pain on 19 April 1990 as he went to hang up a coat. He believed he attended Dr Burgin at that time. He was off work with back pain for two weeks.
36        In cross examination, the plaintiff gave a number of explanations as to what he was doing when he had the onset of back pain in Easter 1990. He said that he was doing some cleaning at home when he felt a sudden pain in his lower back, also that he was putting a pillow case on a pillow and further he injured his back when he and his girlfriend were moving house.

The 1990 Claim Documents
37        The plaintiff tendered a number of documents relating to a WorkCare Appeals Board (“the Board”) hearing in 1990.
38        On 5 July 1990, the Board decided to set aside the decision under review and to substitute its decision that the applicant’s claim be accepted and that weekly payments of compensation be made to him from 19 April 1990.
39        Having been provided with reports from Dr Landsberger and Dr Silver, the Board found that the plaintiff had suffered injury to his back whilst employed by the first defendant in 1988, suffering a recurrence in 1989.
40        The plaintiff told the Board about a second incident on 19 April 1990 when he experienced a sharp pain in his lower back whilst hanging up a coat in his wardrobe.
41        The Board found that the plaintiff had suffered an aggravation of a pre-existing injury which had been suffered by him in the course of his work with the first defendant. The Board also found the plaintiff was incapacitated for work from 19 April 1990 until 27 May 1990.
42        The material before the Board included statements from Joseph Plese, a production supervisor with the first defendant and Neil Dance who was employed by HN as a foreman.
43        In his statement dated 16 August 1989 Mr Plese set out that at that stage the plaintiff was employed by the first defendant as a forklift driver and had been so for six to eight weeks. This job involved driving a forklift ninety per cent of the time.
44        Prior to that, the plaintiff was employed as a process worker, working mainly in the laminating area. Work in that area was basically of a light nature using a spray gun to apply glue onto the substance, and laminating, which involved operating a press by pushbutton and trimming by using a hand held knife.
45        Mr Plese stated that on 20 June 1989, the plaintiff was somewhat reluctant to relieve on the production line during breaks. The following day, the plaintiff’s female friend asked the plaintiff to ring her as soon as possible. When given the message, the plaintiff went home, advising the first defendant that his child had run away.
46        The plaintiff did not work on 22 June 1989 but came in the following day presenting a doctor’s certificate. When Mr Plese asked the plaintiff what was wrong, the plaintiff told him he had a sore back; he did not know how it happened; he was not doing anything; it just happened by itself.
47        The plaintiff was absent from work until 11 July 1989, when he resumed on light duties and was given mainly clerical duties. He subsequently resumed his normal work as a forklift driver.
48        Mr Plese stated as of August 1989, the plaintiff still complained from time to time that his back was sore, in particular when he was required to tie manufactured products onto pallets, a task with which he received assistance.
49        Mr Dance was employed by HN as a foreman. In his statement dated 3 May 1990, he set out that the plaintiff commenced employment with HN on 21 January 1990 and he described the type of tasks the plaintiff performed in that job.
50        Mr Dance stated that until he was given a message on 23 April 1990 that the plaintiff would not be commencing work as he had hurt his back whilst at home during leave, he was not aware of the plaintiff having any back problems. As of May 1990, the plaintiff continued to remain absent from work due to an injury suffered with Tontine.
51        By letter dated 22 November 1990, the Accident Compensation Commission advised Industrial Mutual Compensation of a request to transfer the plaintiff’s claim from HN to Tontine on the basis that it was a recurrence of the plaintiff’s pre-existing injury suffered whilst working for Tontine.

Work after HN
52 The plaintiff deposed that following what he understood at the time to be a retrenchment, he left HN and thereafter struggled for work, being able to find only intermittent casual cleaning work.
53 However, in cross examination, the plaintiff said that between 1991 and 1994, “more often than not” he was working doing domestic and industrial cleaning. It was not physical work and it did not require bending or lifting. It was easy and involved sweeping, mopping, emptying bins and cleaning toilets.

Employment with Unilever
54        In about 1994, the plaintiff obtained employment as a refinery operator with Unilever Australia Limited which was operating a business known as “Edible” which was involved in the production of margarine. When he commenced that employment, the plaintiff was fit and ready for all jobs.
55        In about May 1994, the plaintiff suffered further injury to his lower back whilst working for Edible when he picked up a twenty five kilogram container of oil (“the lifting incident”).
56        Following the lifting incident, the plaintiff consulted his general practitioner, Dr Landsberger, in Footscray. The plaintiff continued under Dr Landsberger’s care until the plaintiff moved to the country in early 2008.
57        In cross examination, the plaintiff did not recall his back pain as being severe at that time, but he could recall having pain.
58        Dr Landsberger arranged for a CT scan of the plaintiff’s spine which was carried out on 10 May 1994. The plaintiff set out the report findings in his affidavit.
59        The plaintiff was off work for a month or two. He was then referred to orthopaedic surgeon, Mr Roy Carey, whom he initially consulted in late June 1994 with problems of radiating pain to his left leg which had come on for the first time. The plaintiff deposed that he recalled Mr Carey thought this was associated with an L4-5 disc herniation on the left.
60        In cross examination the plaintiff said that when the plaintiff saw Mr Carey in June 1994, Mr Carey showed him the CT scan and he said “something about L4 and that”. The plaintiff could not recall Mr Carey saying he should avoid certain activities, change his occupation and not do heavy work.
61        The plaintiff deposed, and confirmed in cross examination, that in August 1994 Mr Carey reported to Unilever that the plaintiff’s symptoms were resolving and it was unlikely he would require surgical intervention, but that he should not undertake heavy, manual and repetitive lifting.
62        In cross examination the plaintiff however, maintained that Mr Carey did not discuss surgery with him, nor did he did discuss with him that he was not fit for heavy work or that he should change his job.
63        Dr Landsberger told the plaintiff he was not a candidate for surgery but he did not tell him that he should not do heavy work. After the lifting incident he told the plaintiff “just to take it easy and relax”. In cross examination, the plaintiff agreed that he was told at that time to restrict what he was doing with lifting and bending as he was in pain.
64        The plaintiff’s job was changed to refinery work after the lifting incident. This was not a heavy job. It involved turning buttons and handles. His employer, not his doctor, arranged for this change of job because it did not want the plaintiff to hurt himself again.

65        Dr Landsberger did not discuss a permanent disability claim with the plaintiff. He did not tell the plaintiff he had a bad back and only told him that he did not need an operation.
66        The plaintiff was referred back to Mr Carey in early January 1996 with ongoing lower back symptoms. Mr Carey again recommended against surgery and referred the plaintiff for an MRI scan which was undertaken on 28 June 1996. The plaintiff deposed as to the findings set out in the report of that investigation.
67        The plaintiff believed he returned to Mr Carey after this investigation and he was again advised surgery would be of little assistance given the presence of degenerative changes in his spine but he did not believe that he was advised by Mr Carey to change work or not do heavy work. Mr Carey did not discuss a permanent disability claim with him.
68        Over the years, the plaintiff did not believe that he knew he had problems with his back and had to avoid heavy lifting. “It is only now” that the plaintiff has been told that he cannot do heavy work and that he has to find another job but he does not know he can get retrained.
69        After his work with Edible ended when the premises closed down, the plaintiff was out of work for some time and his lower back and referred left leg symptoms settled down considerably.

Employment from 1996 to 2005
70        The plaintiff commenced cleaning work at the Williamstown Town Hall in 1996. He was initially employed by CB Cleaning until 1999 when he was employed in the same job by the City of Hobsons Bay. He worked thirty eight to forty hours a week in a job which he agreed was “light type”. When he started this job he told his employer about his prior injuries.
71        So far as the plaintiff could recall, he was not restricted in this job by his earlier back problems and he was not conscious of his back and he just did his job.
72        The plaintiff was told that he would be made redundant from this job in November 2003. He continued to work at the Town Hall until 2004. He was offered another job involving heavier work driving a truck and digging holes but he “did not see why he should do a job that he did not like.” He agreed that heavy work was something he avoided over the years.
73        The plaintiff had problems with stress whilst working in this job as his pay had been reduced after he had been made permanent.
74        The plaintiff was then out of work for some months before obtaining employment with the second defendant in approximately April 2005.
75        Between 1995 and 2005, the plaintiff could not recall any problems with his back nor did he have any problems in 2002. He believed he had no treatment between late 1996 and 3 August 2006. He could not remember going to Wyndham Health Clinic on 9 December 2002 and getting a certificate for two days off work because of lower back pain.
76        The plaintiff could not recall attending the Wyndham Health Clinic in Werribee in July 2002 for a neck problem. However, it was possible he had been diagnosed at that time with a “wry neck”. The plaintiff agreed that between 2002 and 2004, he was not attending Dr Landsberger or other doctors at his clinic because of his lower back.

Employment with the Second Defendant
77        When he started work with the second defendant, the plaintiff had no problem with his back and he agreed that he was completely fit.
78        In his statement to an investigator made on 20 September 2006, the plaintiff confirmed that he had returned to work and had no problems with his back until his current claim (against the second defendant) and that he first started to notice pain in his back about thirteen months earlier.
79        The plaintiff disagreed he knew he had a problem with heavy lifting and bending, because after he left Unilever, “his back came good and he did not have a problem for a while. He was working and could lift things up. His back had become better and he did not have any pain.”
80        The plaintiff agreed he did not have any pain until many years later when he was working with the second defendant. There had been no other incidents or flare-ups since 1996.
81        When starting work with the second defendant, the plaintiff told the second defendant about his previous back injury because he had “been told before, he had to discuss anything he had had a problem with on his employment sheet”. However, he said he was not aware he should avoid doing heavy lifting when he started this job.
82        The job with the second defendant initially exclusively involved the cleaning of toilet facilities. The plaintiff agreed there was not a great deal of heavy lifting involved. He was required to travel around Melbourne to various sites and perform what were known as “deep cleans” on the toilets at those sites.
83        At the start of each thirty eight hour working week, the plaintiff was given a list of some five hundred facilities which had to be cleaned that week. When cleaning the urinals, the plaintiff was constantly bending forward and stretching forward using a large sponge. There was considerable time pressure to complete the work allocated.
84        About a couple of months after starting this work, the unit cleaning work was reduced to two days a week and the remaining three days were allocated to what was known as the “nappy run”.
85        In his affidavit sworn on 14 September 2009, the plaintiff commented upon a statement made by the second defendant’s business manager, Ms Joanne Milton.
86        The plaintiff deposed that Ms Milton started work with the second defendant after the plaintiff was injured and her involvement with him was very limited. He did not believe that she was in a position to comment as to the circumstances of his employment at the time of injury.
87        The plaintiff confirmed that a single toilet constituted a unit and a urinal might constitute a number of units. Depending on its size, he had to clean five hundred units a week. That work was heavy and led to him sustaining injury.
88        The plaintiff also commented on a statement made by a co worker Ms Diane Chatwin. He disputed her claim that he only cleaned one hundred and fifty units per week and confirmed he in fact, cleaned five hundred units a week. If she did not find performing the work strenuous, the plaintiff thought that might be because she was cleaning less than a third of the number of units which he was cleaning. The plaintiff denied her suggestion that he did not report suffering back problems to her.
89        Between April and June 2005, the plaintiff’s normal truck could not be used for the nappy run because the engine had blown up. He was provided with a smaller truck which required greater physical effort to get the bins on and off the truck.
90        The replacement truck allowed for only eighteen bins, whereas the plaintiff was required to load twenty or twenty one bins on the Wangaratta run. The extra three bins therefore had to be loaded on top of the bins at floor level.
91        Further, when doing deep cleans, the plaintiff had to carry cleaning materials to the toilets, when cleaning between eighty and one hundred units each day. A unit/ single toilet took two minutes to clean.
92        In June 2005, the plaintiff suffered a further flare-up of lower back pain with radiation into his right leg. This pain came on initially when bending cleaning toilets and then worsened when he was undertaking the Wangaratta run.
93        The plaintiff advised an employee of the second defendant before going to Wangaratta that he could not work on that day because of his sore back but he was told he had to work or future work would not be guaranteed. On the way to Wangaratta the plaintiff had to stop regularly and rest and stretch his back.
94        Because of the deteriorating condition of his lower back, the plaintiff returned to Dr Landsberger’s clinic on 2 June 2005. The plaintiff was put off work for two days. He considered lodging a WorkCover claim at that stage but did not do so as his symptoms settled down somewhat. He, however, did continue to suffer from intermittent low back pain for which he used pain relieving medication and did stretching and walking for exercise.
95        By the middle of 2006, the plaintiff was suffering increasingly constant symptoms in his lower back. On 9 June 2006, he asked the second defendant’s fleet manager if there was anything that could be done to assist him but he was told he had to do all of his duties.
96        The plaintiff then attended the Werribee Clinic because of worsening back pain and a CT scan was performed on 11 July 2006. He deposed as to the findings set out in the report of that investigation.
97        The plaintiff was then referred to a physiotherapist, whom he saw twice, but the treatment did not make any difference to his symptoms.
98        The plaintiff had various periods of time off work until 24 July 2006, when he returned to work for a week. However, his pain was so bad he had to cease work four days later.
99        On 2 August 2006, the plaintiff returned to work and was given the Wangaratta run. He advised the second defendant that he could not drive that far. Other jobs were arranged for him that day but he could only cope for four hours and then had to go home because of pain. He had the next day off and again attempted to return to work on 4 August 2006.
100       The plaintiff attended Dr Landsberger on 3 August 2006 with lower back pain radiating to his left leg. On 7 August 2006, the plaintiff was put off work for a week. He then told the second defendant that he was submitting a WorkCover claim. The plaintiff was told he “should not hold his breath waiting for the claim to be accepted”.
101       Dr Landsberger continued to certify the plaintiff unfit for work. The plaintiff did not attempt to return to work until January 2007, by which time the second defendant’s business had been sold to Rentokil. The plaintiff was given light duties, sorting through rubbish whilst sitting at a table, three hours a day, three days a week. After a couple of months, his hours were increased to five hours a day, three days a week, and subsequently to seven hours a day, three days a week.
102       More secure work was promised involving the driving of a truck if the plaintiff increased his hours to eight hours a day four days a week, but he only lasted one week with this increase in hours because of his back pain.
103       The plaintiff then dropped back his hours and type of work. He again managed to build up to four hours a day, five days a week, by about September 2007 and, thereafter, to 7.6 hours a day, five days a week on light duties to the time when he “moved to Tongala”.
104       These light duties involved him “jockeying with a girl - just virtually walking around doing nothing”.
105       The jockeying job was sitting in a truck and walking around with this co-worker and moving around sanitary bins in the toilets. It was a full time job and required the plaintiff to assist with pushing a trolley loaded with small empty bins and provide any other assistance when he was able to manage. On occasion he was able to push a trolley and his co-worker did the driving. However, he was on a walking stick for about the first four or five weeks he did this job and used the trolley to help him stand upright.
106       In cross examination, the plaintiff agreed he discussed a return to full time light duties with Dr Landsberger around the end of 2007. At that time the plaintiff wanted to get back to full time work doing his old job “like the Wangaratta run”. As long as there was not any heavy lifting involved, he was cleared by his doctor to do that work.
107       The plaintiff did not discuss his resignation with Dr Landsberger
108       The plaintiff did not mention in his affidavits that he resigned from the second defendant’s employ because of financial reasons.
109       The plaintiff agreed there was a discussion with the second defendant about him returning to driving. He said he wanted to do so if he was going to be given a vehicle to drive. If there was a vehicle, he would have done light duty work. He did not know what type of work was involved “because it never got to that stage”. If he got the vehicle, he thought probably the Wangaratta job would be offered and he did not know what he would do the other two days. The plaintiff said that “anyone could do the job at Wangaratta”.
110       In examination-in-chief, the plaintiff said that he resigned from the second defendant’s employ because he lost the house in which he was living in Bacchus Marsh. He could not afford the rent and he had nowhere to go. The country was the only place because he had family up there and his brother offered him a place to stay. The second defendant said they would look after him. He had to resign first and then they could look after him “up there”.
111       The plaintiff had to move so he could pay various debts. At the time he moved he was being paid $600 a fortnight after the deduction of child maintenance.
112       The plaintiff disagreed that he “decided go to the country”, saying he was kicked out of his house, had no where else to go and there was no other reason why he went there. He did not want to give up his job, he had nowhere to live. He had used all his holiday pay and had been looking after his daughter for two weeks. He wanted to stay working. If he had not had financial problems he would still be working for the second defendant.
113       The second defendant prepared the resignation letter for the plaintiff. He was told he had to resign for the company to help him when he moved up to Tongala because they had companies up there. He was told he would be looked after as long as he signed the paper. Then as soon as he signed it, he “heard not one word from them again”.
114       The plaintiff seemed somewhat confused about his conversation with Joanne Milton about the offer of any job in Albury or Echuca. He did not go to Echuca to make enquires as to similar work. He thought the company was doing it for him and he did not hear from them - “They said they were helping him yet they ‘turned their back on him’.”
115       The plaintiff attended Centrelink to get on Newstart about a week after he moved to Tongala. He was put into contact with CRS who organised a program for him which was to run until 23 February 2010 and he was given assistance with medical treatment. From October 2008, he has been in receipt of a Disability Pension.
116       The plaintiff agreed that between January and March 2008, no one was telling him he could not work. He did not look for work because he was getting settled in to find out what he could do and then he got in touch with Social Security. Since moving to Tongala, the plaintiff has done one day of leather work training.
117       The plaintiff did not go and look for a job because there were no jobs in Tongala that he knew he could do. He has never looked for a job of the type he was doing when he resigned.
118       In re examination, the plaintiff said that he could now do most of his job with the second defendant except for the deep cleans because there is too much bending and stretching. He would be able to do the nappy run if he was given the proper truck. There was a possibility he would have been moved beyond jockeying to some other duties but he did not know when.
119       Dr Richards arranged for a further CT scan on 7 April 2008. The plaintiff deposed as to the findings set out in the report of that scan. Subsequent to that scan, Dr Richards discussed with the plaintiff the possibility of surgery, but given the advice the plaintiff had previously received, the plaintiff was very hesitant about going ahead with it.
120       In cross examination, the plaintiff agreed that he told Dr Richards in May 2008 that his mobility had improved since starting physiotherapy and things started to improve a little. He may have told Dr Richards in July 2008 that he was doing well.
121       The plaintiff is not looking for work at the moment. Dr Richards told him not to look for work and told him he was not capable of doing any work.
122       In cross examination, the plaintiff said that Dr Richards may have told him that he might be able to do some lighter type duties. However, he did not suggest to the plaintiff he make an effort to get back to work. The only work he thought the plaintiff could do would be an hour or two a day based on the assessment by CRS.
123       Because of his back injury, the plaintiff believes that he would have trouble obtaining employment in the future. He agreed he might be able to concentrate more on looking for a job if he did not have to go and see solicitors and doctors. He had not thought of his plans for the future when his case is finished.
124       The plaintiff agreed that he could do driving jobs as long as there was not much lifting or not too far to drive. He agreed he could work as a courier or in a similar job.
125       The plaintiff would rather be working than out of work. There is not much chance of employment where he now lives and a lot of the big companies are closing down.
126       The plaintiff has constant but variable levels of lower back pain and referred symptoms into both legs, particularly the left. He has difficulty sleeping and only gets about four hours of broken sleep a night. His condition is not getting worse; the pain had “levelled out". He is still in pain but the pain is not as fierce as it is in the winter. He is still learning to live with it and he has trouble with a lot of things.
127       In re examination, the plaintiff said that there was not really any improvement in his level of symptoms since he had stopped work and his condition remains stable. He gets a lot of radiation of pain down the legs. He sees an osteopath who massages his back and makes it feel better for a day or two but the funding for this treatment is about to cease.
128       As long as he does not do a little bit too much housework, the plaintiff does not get a lot of pain. If he does do a bit much he has “to lay down or stretch or something.”
129       The plaintiff is unable to engage in sporting activities. He used to enjoy riding a pushbike and although he still tried, he cannot ride anywhere near the distance he used to. His ability to sit or stand for extended periods is particularly limited.
130       The plaintiff has missed out on activities with his children, including camping, fishing and going on holidays. His home life has been severely disrupted, having to live with his brother when he first moved to Tongala until January 2009 and he then was dependant on him for the performance of most domestic chores around the house.
131       The plaintiff presently lives in a flat contained in and owned by an aged-care facility which he rents for $115 per week. He can do a little bit of housework cleaning benches and washing up and he has a friend who helps with vacuuming.
132       The plaintiff goes to the local hotel on occasions and he socialises with his brother. He walks to his parent’s place. He gets up at about 10 am and has a coffee and listens to some music. He has lunch and then lies down. In the afternoon “maybe he goes and sees someone” or sits down and watches television. At night, he watches television and smokes cannabis to help him sleep. He does a little bit of shopping at times. He does not like gardening. He has no hobbies.
133       The plaintiff’s ability to travel or drive over extended distances is restricted by his back pain. In cross examination, the plaintiff agreed that he drove his brother to work at a wrecking yard in Shepparton when his brother did not have a licence. The round trip was ninety minutes. He had to have a rest after each single trip. It is twenty five minutes’ drive from Tongala to Echuca and thirteen minutes to Kyabram.

134       In early 2009, the plaintiff was prescribed Lexapro, because he was suffering from depression resulting from his physical injuries. Since June 2009 he has been attending Clare O’Brien, a psychologist, who has given him counselling, particularly in pain management techniques, and he has derived some benefit from those attendances.
135       Towards the latter part of 2009, Dr Richards died and the plaintiff was forced to change doctors. Since then, he has been seeing Dr Cheeti, from the Kyabram Regional Clinic, who attends Tongala on a weekly basis to review patients.
136       At one stage Dr Cheeti considered there was some problem with the use of Tramal and Lexapro in combination, and these medications were ceased pending the implementation of a new medication regime. The plaintiff presently takes Mobic, Tramal and Lexapro. Further, the plaintiff continues to undertake exercises at home every morning as advised by the physiotherapist and he walks around the block.

The Plaintiff’s Medical Evidence
137       The plaintiff was examined by Dr Silver at the request of WorkCare Compensation Services on 4 May 1990. The plaintiff told Dr Silver he hurt his back in 1988 when bending and lifting headliners for cars which were made by the first defendant. The plaintiff was diagnosed as having an inflamed disc and was put on light duties, after which he came good after a week or two.
138       The plaintiff told Dr Silver he had a further episode of back pain during June 1989 when driving home from work one day, after which he had difficulty moving the following day.
139       Dr Silver noted that the plaintiff saw Dr Burgin, who also diagnosed a disc problem on the basis of x-rays and a CT scan which apparently showed a “rounded off L5 disc”. The plaintiff was off work for two weeks and then had part time work, returning to full time duties two weeks later. After his recovery, he suffered only the occasional twinges which occurred off and on until an episode in 1990.
140       During the 1990 Easter break, the plaintiff was bending while doing some cleaning at home when he got a sudden sharp pain in the low back which disabled him to the point of having to lie down. He consulted Dr Burgin, who diagnosed a recurrence of his previous disc problem and ordered rest. He was put off work and was still off work as of early May 1990. He was taking anti-inflammatory medication and attending a chiropractor, but he was getting better and was to return to work for six hours per day on 8 May 1990. At that time, the plaintiff was working for HN, a job which was not particularly physically demanding, having left Tontine when he was offered a better job.
141       Dr Silver considered there was clinical evidence of a lumbar disc lesion. He noted the commencement of history in 1988 and thought that such lesion was caused by either the 1988 or 1989 episode. He considered the present episode in Easter 1990 was the second subsequent episode of pain, but as it occurred at home it was in no way related to the plaintiff’s current work.
142       Dr Silver thought however, it was an aggravation of a condition that was work- related and must therefore relate to his original employer, the first defendant. Dr Silver noted the plaintiff was almost completely recovered from his current exacerbation of back pain but had residual limitation of lumbar spinal movement. The plaintiff was limited in respect of long standing and sitting but was capable of and would return to work the following week.
143       Dr Burgin reported to Ryan Carlisle Needham Thomas, solicitors, on 6 June 1990 having seen the plaintiff on 19 April 1990 when the plaintiff complained of back pain suffered in June 1989 which he stated had commenced after lifting at home.
144       The plaintiff had also been earlier seen by Dr Burgin on 22 June 1989 when he complained of a gradual onset of backache. The plaintiff was certified unfit for work for four days. The plaintiff also said he had suffered an injury at work the year prior to that episode. The plaintiff was referred for a CT scan on 5 July 1989 which revealed a mild annular type bulge of the L4-5 disc.
145       Dr Burgin thought the plaintiff probably sustained the injury prior to the 1989 episode and that subsequent episodes of back pain were a recurrence of this prior injury.
146       Mr Carey first saw the plaintiff on 1 July 1994 on referral from Dr Landsberger. The plaintiff told Mr Carey he had had a backache on and off since 1988 but had left sciatica only since May 1994 when he picked up a twenty five kilogram bag at work.
147       At the time of the initial examination, the plaintiff was coping with part time work and altered home duties and Mr Carey did not suggest surgery or any other specific treatment.
148       On 2 August 1994, the plaintiff returned to see Mr Carey feeling significantly improved with some minor backache and only minimal leg pain. The plaintiff was then working three days a week, eight hours a day on light duties, mainly hosing, and he was coping.
149       On that examination, Mr Carey thought the plaintiff had resolving sciatica due to disc herniation. The condition was not stable but was presently improving and Mr Carey imagined that that improvement would continue for some time. Mr Carey thought that while the plaintiff may not suffer considerable pain or physical restriction in the future, he would have a permanent disability in the longer term in the sense that he would advise him against returning to his normal heavy work.
150       Mr Carey commented that the plaintiff was unlikely to require any surgical intervention, at least in the short and medium term, provided he looked after himself. Mr Carey thought the plaintiff should avoid heavy lifting and repetitive bending consistent with having a “bad back”. He did not consider that it would be reasonable for the plaintiff to return to his normal job in a full time capacity at least for a year or so, if indeed it was impossible for him to be placed elsewhere, which would, in Mr Carey’s view, be more advisable.
151       By letter dated 2 August 1994, Mr Carey advised Dr Landsberger that he had reviewed the plaintiff that day. Mr Carey noted there was minimal leg discomfort although some occasional backache. He mentioned that the plaintiff was to alter his duties rather than pure refining work and he thought that that would be in his interests.
152       Mr Carey reviewed the plaintiff on 6 September 1994. The plaintiff’s back was still a little unstable with some left buttock discomfort produced when helping his wife move house a couple of days earlier. Mr Carey advised Dr Landsberger that he was very happy the plaintiff was managing to increase his hours at work and that he would simply review the plaintiff in a couple of months, should this still be warranted.
153       Mr Carey next reviewed the plaintiff on 3 January 1996 at Dr Landsberger’s request. Following the examination, Mr Carey advised Dr Landsberger that the plaintiff’s major problem obviously was the fact that he had no other trade or training and he had always done extremely heavy work.
154       Mr Carey noted the plaintiff had now been made redundant and, indeed, the discomfort at least in his back was a little improved, although his left leg was still a problem.
155       He advised he had arranged to re-assess the plaintiff with some simple x-rays and a CT scan and then discuss matters further with him. On the basis of the plaintiff’s assessment to that time, Mr Carey felt surgery was highly unlikely to make any difference to his symptoms.
156       Mr Carey next reviewed the plaintiff on 28 June 1996. Mr Carey then noted that whilst surgery may be appropriate for the plaintiff’s leg pain, in the presence of multi-level disc degeneration, even the results of that surgery were unpredictable and, in his experience, highly unrewarding.
157       Mr Carey advised Dr Landsberger that he had suggested the plaintiff continue conservative treatment and the undertaking of activities of daily living according to the limits of his pain.
158       Following review on 26 August 1996, Mr Carey advised Dr Landsberger the situation was really not much different. The plaintiff still had significant back pain as well as bilateral leg discomfort.
159       Mr Carey suspected decompression would not make a lot of difference in the absence of fusion, and, for the reasons he had previously expressed, he was not so much in favour of either procedure.
160       Mr Carey advised Dr Landsberger that the plaintiff had moved to Corowa where he was currently looking for work, although he said there was little or none available. The plaintiff had a solicitor involved at that stage as WorkCover would no longer pay him as he took a payout in November 1995 on retrenchment.
161       Mr Carey next reviewed the plaintiff on 25 November 1996. The plaintiff had then moved back to Werribee from Corowa seeking work and also in an attempt to get back with his wife.
162       Mr Carey advised Dr Landsberger that he would see the plaintiff again the following January but it would seem that the most important thing that one could possibly do for the plaintiff would be to “plug him into some sort of return to work program locally”.
163       The plaintiff presented to Dr Landsberger on 3 August 2006 complaining of low back pain radiating to the left leg. This was a flare-up of a previous back problem at work for which the plaintiff attended on one occasion on 2 June 2005 when he was given anti-inflammatory medication. The plaintiff continued working and investigations were ordered.
164       The plaintiff re-presented on 7 August 2006 considerably worse and he was given a certificate for a week off work. On 22 August 2006, there was only minimal improvement. On 30 November, the plaintiff was referred for physiotherapy.
165       The plaintiff was offered a return to work plan which commenced on 10 January 2007 and over the next four months he gradually progressed to working eight hours per day, three days a week.
166       There was a setback in January 2007 when the plaintiff ceased work following an episode of excessive lifting. He eventually returned to work on a graduated program on 27 July 2007. He again gradually increased his hours over the next three months, but in February 2008, he ceased work (having resigned from his job).
167       Dr Landsberger noted the plaintiff was going to seek some form of alternative employment and had informed him on 6 March 2008, on the last attendance, that he was going to Echuca.
168       In summary, Dr Landsberger considered the plaintiff had a chronic significant back disc injury. Whilst able to perform restricted appropriate duties, he thought the plaintiff’s long term prognosis would remain guarded and he may eventually require surgery.
169       Dr Landsberger was required for cross examination. He did not have available to him notes of any treatment of the plaintiff prior to 2002 nor did he have any recollection of seeing the plaintiff before that time.
170       Between 1996 and 2002, Dr Landsberger’s practice, the Westmed Clinic, (“the Clinic’) was a bulk billing practice. The Clinic was fairly active and would have had a quite regular stream of patients involved in industrial accidents and claims.
171       When shown the 1994 lumbar CT scan, Dr Landsberger agreed that there was a very great similarity between the findings on that CT scan and the CT scan taken after 2006. It suggested to him the plaintiff had degenerative problems in his back with a couple of bulging discs.
172       Such a finding would not change his management of a patient in any way. His aim would be to rehabilitate with exercise and hopefully get the patient back into being active and into the workplace as soon as possible because “the longer they are inactive the worse their case becomes”.
173       Dr Landsberger said “without any shadow of a doubt” he would have taken the plaintiff through what Mr Carey had advised. He would be very confident that Mr Carey would already have explained the situation to the plaintiff in great detail because his experience with Mr Carey was of him being very communicative.
174       Dr Landsberger agreed that a person with degenerative disc disease in his late twenties and early thirties, would from time to time be responsive to situations the whole of his life which could be described as flare-ups. He would advise such patients to take ongoing care of their back, avoiding activities that might cause flare ups.
175       Dr Landsberger agreed with Mr Dooley’s comments that there was certainly a group of people who can develop bulging discs that periodically become inflamed, and that that can happen at a relatively young age.
176       Dr Landsberger commented that someone can have a bulging disc or discs in any part of their spine, being asymptomatic, and can go for ten years without any symptoms. It was very possible for a radiological report to say a patient had a bulging disc and yet that had no relationship whatsoever to their symptoms, the cause of their symptoms or how they would be managed. He confirmed there would be flare-ups from time to time and that he would expect the natural condition to progress of itself. He would also expect a patient who did manual work of varying degrees and did activities in his home and domestic life would have episodes of pain from time to time. Dr Landsberger “very much agreed” it was not outside the realms of medical language to describe flare-ups as transient episodes.
177       Dr Landsberger said the conclusion could definitely be drawn that in light of reports from Mr Carey, that he would have given the plaintiff advice to take care in respect of his activities and that he certainly would have without any doubt enforced Mr Carey’s advice.
178       Dr Landsberger was cross examined by counsel for the second defendant about his entry in the clinical notes on 5 February 2008 that the plaintiff “had resigned from work!!”.
179       Dr Landsberger said it was a surprise to him the plaintiff had resigned because from a clinical point of view it was best for him to continue being active. Dr Landsberger was certainly aware on many occasions that the plaintiff was having financial problems.
180       Having moved to the country, the plaintiff drove to Melbourne a couple of times to see Dr Landsberger. He continued to certify the plaintiff as he had previously, doing the same hours and the same duties until April 2008.
181       In February 2008, Dr Landsberger noted “advice regarding job search and contacting Centrelink”. He explained he gave this advice specifically for the plaintiff to try and continue to be active and try and continue in gainful employment on the correct sort of duties that had been organised for him as part of his rehabilitation:
“That would have been a good thing - to in fact enable the plaintiff to continue the improvement that they had got and not to have him going back into being inactive and possibly then have a flare up sooner rather than later.”

182       Dr Landsberger confirmed that there was no doubt that he would have sat down with the plaintiff and explained to him the problems on two levels in his back and why “they could not go in and operate”. That was because one of the things he believed he “prided himself on medically, was educating his patients extremely well about whatever condition they had to deal with”. His philosophy was in fact that patients should take ownership of that knowledge and take ownership of the management of their condition.
183       Dr Landsberger would have advised the plaintiff he should avoid doing heavier type work, and that was confirmed by the type of certificate he was providing.
184       When asked about Dr Davison’s opinion, Dr Landsberger confirmed that there had been very little change between radiological findings in 1994 and those after 2006. However, Dr Landsberger disagreed with Dr Davison’s premise that the plaintiff’s symptoms related to pre-existing lower back pathology with episodes of pain being the part of the natural history of such a condition and that such a recurrence could have occurred had the plaintiff been employed or not.
185       Dr Landsberger agreed that with appropriate treatment the plaintiff was capable of self managing his condition. He thought the plaintiff needed to remain active physically and undertake as many normal day to day activities as possible.
186       In re-examination, Dr Landsberger said evidence of a disc bulge could be construed in one of two ways: it could be an inconsequential finding, as is the case on many occasions where there is a bulge without any clinical symptoms, but it could also be construed as the start of pathology that was then going to lead into a problem later in life.
187       Dr Landsberger then agreed however, that there had been a picture that appeared of a gradually deteriorating degenerative problem compounded by disc pathology between the 1988 and 1994 testing. In his view, on the balance of probabilities, the cause of that could certainly be attributed to excessive physical activity.
188       Dr Landsberger thought that from before 2005 to the time of the 2008 CT scan, there was no doubt that certainly there was deterioration in the plaintiff’s radiological condition.
189       Based on that radiological change alone, Dr Landsberger thought if it was possible to find work for the plaintiff, such work would be bordering on sedentary. However, as he explained, it was very difficult to comment in this regard because radiological evidence and physical evidence do not always correlate.
190       The plaintiff first consulted Dr David Richards in Echuca on 19 March 2008.
191       The plaintiff told him he first injured his back in 1996 while working in an awkward position fitting internal lighting to a car. After a period of recovery, he was able to return to work and had no further serious problems with his back until 2006 when he re-injured it working as a cleaner.
192       On 15 October 2008, the plaintiff asked Dr Richards to complete a treating doctor’s report to support his application for a Centrelink Disability Pension.
193       In his last report of 27 April 2009, Dr Richards noted there had been little change in the plaintiff’s condition and that he had been seeing him intermittently since September 2008.
194       Dr Richards thought it highly likely that the plaintiff would require some psychotherapy for management of his depression which could be in the context of a multi-disciplinary pain management program. Dr Richards considered that the plaintiff’s long experience of pain and physical disability was a significant factor in the development of his depression.
195       Dr Richards thought that the plaintiff was currently unfit for the duties of his former employment or for suitable employment. Assuming a satisfactory response to treatment for his depressive disorder, Dr Richards thought it possible that in the future the plaintiff could be re-trained for employment within the limits of his physical capacity.
196       In Dr Richards’ view, the plaintiff had a very reduced ability to perform normal household tasks, particularly those involving bending, twisting, lifting, pushing and pulling. Further, his injury and its consequences had virtually stopped him participating in any recreational or social activities. Dr Richards considered the plaintiff’s physical injury and associated impairment were permanent and, noted, hopefully, the depressive disorder would respond to treatment in time.
197       Dr Richards thought that the plaintiff was totally unable to lift heavy weights. He thought the plaintiff had no ability to perform any tasks requiring repeated lifting, bending, twisting, pushing or pulling.

198       The plaintiff was first examined by Mr Hugh Weaver, orthopaedic surgeon, for medico-legal purposes on 31 March 2009.
199       The plaintiff told him that in around 1985 or 1986, whilst working for the first defendant, he was involved in the manufacture of headliners and there was a lot of bending involved in that activity. He apparently experienced some low back pain without any real leg pain at that stage. He saw a general practitioner and had some chiropractic treatment and was off work for about a month. He alleged that the pain subsequently resolved satisfactorily.
200       The plaintiff told Mr Weaver he was then functioning satisfactorily until 1996, by which time he was working for Unilever on a production line. He suffered injury, experiencing both low back pain and some left leg pain, whilst lifting a heavy can of oil.
201       The plaintiff was off work for two or three weeks and rested. He was then able to resume full-time light duties, but his job was subsequently changed to full-time refinery operator work which was lighter. Soon thereafter the factory closed down.
202       The plaintiff told Mr Weaver he coped with subsequent cleaning jobs and he then took up work with the second defendant around 2005.
203       The plaintiff told Mr Weaver that as a result of the “nappy run” activities, he experienced further low back pain and left leg pain and, for the first time, also some right leg symptoms.
204       The plaintiff told Mr Weaver he continued working with the second defendant until 15 January 2008 when that firm effectively got him to resign from employment and he went on sickness benefits and then a Disability Support Pension.
205       Mr Weaver noted on examination, the plaintiff exhibited a good range of movement within the thoracolumbar region. He flexed well with a rounded back and he also exhibited some active extension beyond neutral. Lateral flexion and rotatory movements were all undertaken in a reasonably full fashion. There were no neurological abnormalities. There was no convincing evidence of additional lower limb neurological involvement.
206       In Mr Weaver’s view, the plaintiff presented with clinical, radiological and MRI evidence that he was suffering from a mild persisting degree of lumbar intervertebral disc degeneration.
207       He noted the plaintiff could presumably argue that the overall character of his work performed over many years had contributed to the development of this problem.
208       Having been given a history of the plaintiff’s work by the second defendant’s solicitors, Mr Weaver thought there were probably some grounds for arguing each of the employment activities had contributed to some or other extent to the current development of his problem.
209       Mr Weaver noted, in relation to the 1984 injury, the plaintiff required little active treatment and had not lost any significant time away from work. In his view, most of the plaintiff’s problems appeared to relate to later employment undertaken respectively in 1996 with Unilever and then with the second defendant.
210       Mr Weaver was not convinced the plaintiff’s lumbar disc problem was significant enough to justify him being a candidate for surgery.
211       Mr Weaver considered the plaintiff would cope with various forms of light to moderate employment, but obviously required, if possible, to be retained in situations in which he was not obliged to undertake frequent bending or twisting movements of his back and restricted to ten kilogram lifting. He thought the plaintiff’s low back problem would genuinely make it difficult for him to perform heavy physical employment tasks.
212       Mr Weaver re-examined the plaintiff on 11 November 2009, at which stage there was no real change in the plaintiff’s complaints or in Mr Weaver’s opinion.
213       Mr Klug, neurosurgeon, examined the plaintiff for medico-legal purposes on 20 October 2009. The plaintiff told Mr Klug that in 1984, whilst working with the first defendant, he first noted low back pain but did not associate it with any specific incident. He went to his local doctor and was told he was suffering from a strain. His symptoms persisted and at some stage he had a CT scan and was told there were disc bulges at two levels.
214       On one occasion, the plaintiff was off work for three or four weeks, then he was able to return to previous type of activities. He left the first defendant in 1990, not related to his back condition, and gained employment in 1992 with Unilever.
215       In either 1995 or 1996, the plaintiff developed a recurrence of severe low back pain after placing a pillowcase on a pillow. He told Mr Klug it was the most severe pain he had ever experienced. He went to his doctor and was given a certificate and remained off work for three months, during which time there was some improvement with physical treatment. He was then able to resume work with Unilever, undertaking his previous duties, until the firm closed down in 1998.
216       The plaintiff did not tell Mr Klug about the lifting incident in 1994.
217       Mr Klug noted that the plaintiff then had casual cleaning jobs until he commenced employment with the second defendant in 2005.
218       In June 2006, there was a substantial worsening of the plaintiff’s condition which he attributed to the need to bend and lift appreciable weights on a repetitive basis. He remained off work for six months, resuming in January 2007, returning on light duties which continued until he finally left in July 2008 and moved to Tongala.
219       When he saw Mr Klug, the plaintiff was taking a fifty milligram tablet of Mobic each day and, when his pain was more severe, he took Tramal. He was also taking the anti-depressant, Prozac.
220       On examination, the plaintiff wore a lumbar surgical brace. There did not appear to be any spinal deformity. There was some restriction of movement to approximately half the normal range. There was no significant tenderness over the spine.
221       Mr Klug could not detect any evidence of impaired neurological function except for some slight alteration of sensory perception over the outer aspect of the left foot. He concluded the plaintiff suffered from a degenerative disorder of the lumbar spine with evidence of a predominant disc disorder at L4-5.
222       Given that the plaintiff’s initial symptoms occurred whilst employed by the first defendant, Mr Klug stated that he would have to be of the opinion that the nature of the plaintiff’s employment whilst he was in that job would have to be considered a cause of his current condition. The plaintiff’s employment with Unilever further aggravated the disorder and, as such, that aggravation was contributing to his current condition.
223       In the future, Mr Klug felt that it was probably not necessary for the plaintiff to have surgery. He noted the plaintiff had a chronic low back disorder which would never resolve, as a result of which his employment potential was permanently impaired.
224       Mr Klug thought that any activity where the plaintiff was required to bend, lift and twist and place undue strain on his back would most likely aggravate his condition and would be unsuitable. Based on his assessment, Mr Klug believed the plaintiff could probably undertake some type of alternative work. However, when one considered the current situation, the plaintiff’s employment background and living in Tongala, Mr Klug thought the chances of him being able to find suitable employment would appear to be somewhat remote.
225       Mr Klug accepted any home activities of a physical nature were somewhat limited and the plaintiff’s ability to participate in physical activities of a sporting nature would be limited by his spinal condition. He anticipated some waxing and waning but thought the plaintiff’s condition could be considered permanent.
226       Mr Khan, orthopaedic surgeon, examined the plaintiff on 21 December 2009.
227       On examination, the plaintiff had residual numbness and mild pins and needles in the left leg along the lateral aspect of the left ankle going down to the outer border of the dorsal aspect of the foot. There was limitation of thoracolumbar spine movement. There was no evidence of any muscular weakness or neurological signs in the lower limbs.
228       Mr Khan noted the plaintiff presented with a long history of back injury. The plaintiff told him he had been employed by the first defendant from 1984 to 1990 and in April 1988 he developed back pain lifting car insulation material at work. This pain eventually settled down and he was treated by Dr Burgin and returned to work on 26 June 1989. No sciatic pain was recorded at that time.
229       The plaintiff was able to return to work with HN on 31 January 1990 and managed his duties there until he was retrenched after a year.
230       The plaintiff then suffered a further injury to his back at Unilever lifting a twenty five kilogram weight. He was then seen by Mr Carey who recommended conservative treatment. The plaintiff managed to perform cleaning duties from 1994 to 2004 when he joined SGS as a cleaner.
231       The plaintiff experienced problems in that employment lifting bins of nappies and had to go off work from mid 2006 until January 2007. He then developed pain in his right leg and his condition deteriorated further.
232       Mr Khan noted the plaintiff had not been able to find suitable employment since moving to Tongala and he had been accepted for a Disability Pension.
233       Mr Khan thought that the plaintiff had suffered a minor discogenic injury at L4- 5 without radiculopathy when he injured his back in 1988 and it had subsided with conservative treatment soon afterwards.
234       In his view, the plaintiff suffered a discogenic injury at L4-5 and, to a mild extent, L5-S1 when lifting at Unilever.
235       Hence, the plaintiff had a persisting disc prolapse at L4-5 which was compromising the theca but not causing any radiculopathy, although he had some pain in his left leg and a minor disc prolapse at L5-S1 without radiculopathy.
236       Mr Khan noted the plaintiff had made a partial recovery and been left with residual after effects of the injury contributed to by his employment with the second defendant.
237       Mr Khan thought the plaintiff’s employment with the first defendant contributed twenty per cent to his back injury, his employment with Unilever contributed thirty per cent and his work with SGS, fifty per cent.
238       Mr Khan considered the plaintiff fit for suitable work avoiding excessive lifting, bending, twisting and turning of his spine and keeping his back bent for long periods and avoiding lifting more than five kilograms at a time.
239       Dr Cheeti, of the Kyabram Regional Clinic, first saw the plaintiff in relation to chronic back pain on 22 December 2009 and has seen him on a number of subsequent occasions.
240       The plaintiff told him that he had been having back pain since 2006, which he noticed when performing his duties, and it had not changed much since early 2008. Dr Cheeti noted the moderate to large central disc protrusion shown on a CT scan carried out in April 2008 and also that the plaintiff was suffering from depression.
241       Dr Cheeti felt the plaintiff could not perform the complete pre-injury duties which involved heavy lifting of more than five kilograms weight, twisting and bending and long hours of sitting and standing. He did not consider the plaintiff capable of suitable employment.
242       The plaintiff was examined by Ms Rebecca Amy, speech pathologist, on 15 and 29 June 2009. She was noted the plaintiff had been a client of CRS since 27 February 2008 and during that time she had acted as his CRS rehabilitation consultant and case manager.
243       In her view, the results of career planning were not fully confirmed due to the deteriorating nature of the plaintiff’s condition and recent exacerbation, and she thought it had become obvious that even in suitable vocations he may not be able to sustain eight hours plus of work per day.
244       The plaintiff reported to her concerns in relation to literacy and ability to transition back to work that was different to what he had done in the past.
245       After testing, Ms Amy concluded that the plaintiff would benefit from assistance and reviews of paperwork associated with job seeking. She thought currently his pain and positional tolerances would affect his capacity to sustain work for more than an hour or two a day and that hopefully, participation in a residential pain management program would assist in building work tolerance and pain management strategies.
246       Ms Amy recommended the plaintiff attend the residential pain clinic in Wodonga and obtain some assistance with his general literacy and verbal skills.
247       Ms Claire O’Brien, psychologist, examined the plaintiff, on 23 June 2009 on referral from Dr Richards who advised a single assessment session was requested by the insurer.
248       Ms O’Brien noted the plaintiff reported an abnormal level of pain perception. There were no illusions, hallucinations or dissociative experiences, such as depersonalisation or derealisation, reported or evident. She noted the plaintiff was oriented to time, person and place and he described problems with memory, concentration and attention.
249       Her provisional diagnosis was a presentation with symptoms consistent with a major depressive disorder. She considered the plaintiff’s psychological presentation was such that he was currently unfit for suitable employment due to his depression and chronic low back pain.
250       Dr Nigel Strauss, psychiatrist, examined the plaintiff on 28 July 2009.
251       On mental status examination, the plaintiff was noted to be a mildly depressed man, concerned about his circumstances, his chronic pain and his disability. Dr Strauss thought there was no evidence of any psychosis, delusions or thought disorder. The plaintiff’s insight was good. His speech was normal and eye contact was good.
252       In Dr Strauss’s view, the plaintiff had developed mild depression as a consequence of his physical injuries. He thought the plaintiff had a mild adjustment disorder with depressed mood due to employment. He thought the plaintiff needed ten visits to a psychologist and that he should continue to take anti-depressants for six to twelve months.
253       Dr Strauss noted the plaintiff managed his activities of daily living adequately but he did not enjoy recreational and social activities as much as he used to. He could not state the plaintiff had an incapacity for employment on psychiatric grounds but he thought that he may have on physical grounds. He noted, however, that the plaintiff had significant literacy problems and had only ever done physically demanding work.
254       Dr Epstein, psychiatrist, examined the plaintiff on 4 August 2009.
255       On examination, the plaintiff appeared well orientated. His affect was restricted and he appeared depressed and mildly anxious. His perception appeared normal. The plaintiff had no obvious problems with memory or concentration and there was no evidence of thought disorder, delusions or hallucinations.
256       As a consequence of chronic pain, discomfort and disability, Dr Epstein considered that the plaintiff had developed a mild, chronic adjustment disorder with depressed mood.
257       If the plaintiff was able to return to work consistent with his back condition, Dr Epstein thought that it was likely that his mood would improve. He thought it was appropriate the plaintiff have more treatment from a psychologist.
258       The plaintiff was examined by Mr Michael Shannon at the request of Unilever Australasia on 18 March 2009. His report was added to the plaintiff’s court book during the course of written submissions. In these circumstances and under objection from counsel for both defendants, I give limited weight to the views expressed therein.
259       The plaintiff told Mr Shannon about a gradual process injury whilst employed by the second defendant involving the recurrence of a pre-existing low back problem.
260       Mr Shannon noted that it appeared the plaintiff first injured his back in 1986 while working for Tontine doing car installations. In 1996, the plaintiff was working with Edible Oils on the production line and he had to move a twenty kilogram tin of oil. After that he suffered a recurrence of pain in his low back and had two or three months off work. He returned to work on light duties and became a line operator and did that work until the factory closed in 1999. His back improved and he required no treatment between 1999 and 2006 except for an occasional Panadol.
261       The plaintiff’s back gradually became sore over two months leading up to August 2006. He was then off work for six months until January 2007 when he returned to light duties on reduced hours eventually returning to full time light duties in December 2007.
262       On examination of the lumbar spine there was moderate restriction of thoracolumbar movements, particularly extension. There was no major spasm. Straight leg raising was to fifty degrees and improved a little in the sitting position. There was no muscle wasting and ankle reflexes were absent and the plaintiff had altered sensation on the outer border of the foot.
263       Mr Shannon concluded, although the history was a little confused and it was slightly different from the history he had been given by the solicitors who arranged the examination, it appeared the plaintiff had longstanding low back problems dating back to 1986.
264       Mr Shannon had the CT scans of 1994 and 2008 and the MRI scan of 1996. He noted the scans had consistently shown disc protrusion at L4-5 and minor disc bulging at L5-S1. It appeared to him that the plaintiff had an L4-5 disc prolapse as early as the 1994 scan and indeed the plaintiff’s left sciatic symptoms seemed to go back even longer than that.
265       Mr Shannon noted however, the plaintiff claimed each of those episodes of more severe pain eventually subsided and the plaintiff was relatively symptom free when he started work with Unilever.
266       In Mr Shannon’s view, it was consistent that the work the plaintiff had been doing resulted in some aggravation of the degenerative change in the lumbar spine and may well have resulted in further prolapse of the L4-5 disc which had been the cause of his original problems.
267       Mr Shannon considered the plaintiff had an ongoing moderate disability in the low back and had some ongoing sciatic symptoms which were consistent, although there was no objective evidence of radiculopathy. He doubted the plaintiff would benefit from surgery.
268       Mr Shannon noted the plaintiff appeared to have few skills or qualifications and had always done moderately physical work by reason of the fact the plaintiff was living in the country, there would appear to be little in the way of appropriate work available for him. Mr Shannon considered the plaintiff was not necessarily totally incapacitated but he would be ill advised to go back to work involving a lot of bending and lifting.
269       Dr Kornan, psychiatrist, examined the plaintiff on behalf of Monahan & Rowell, solicitors, on 31 March 2009. On examination, the plaintiff advised Dr Kornan there was no illicit substance abuse in terms of marijuana. He also indicated his current claim related to a back injury in 2006, before which he was in reasonably good health but that there had been back pain in 1994 and 1996 which commenced again in 2005.
270       Dr Kornan thought the plaintiff presented with an adjustment disorder of a mild degree which had occurred as a result of his alleged employment injuries “if, and as they exist from Unilever”.

399 In the last two or three years however, the plaintiff has been in constant pain. In 2006 following injury working with the second defendant the plaintiff “had the most fierce pain he had had over the whole time.”

400 I accept that the plaintiff’s evidence in relation to the reasons for commencement of this application in December 2008 was unchallenged in cross-examination which was confirmatory of a general stability in the level of symptoms over a ten year period between 1996 and 2006.
401       Counsel for the first defendant submitted that the plaintiff had knowledge of the serious injury consequences prior to 23 December 2005. It was submitted the lifting incident was significant. The lumbar CT scan following thereafter disclosed the plaintiff’s L4-5 disc was diffusely bulging and more marked centrally and that there was thecal compression.
402       The symptoms eventually settled and the plaintiff returned to work and had no problems with his back until his current claim.
403       The plaintiff agreed he had to look after himself and he did, and that he was very careful whilst working for the second defendant about the type of work he was doing. He agreed there was not a great deal of heavy lifting involved in that job.
404       Further, in August 1996, Mr Carey reported to Dr Landsberger that the situation was not much different and that the plaintiff had had twenty seven months of ongoing significant pain since the lifting incident.
405       Mr Carey advised Unilever in writing that the plaintiff would have a permanent disability in the long term. Further he advised the plaintiff against returning to his normal heavy work; he was unlikely to require surgery in the short and medium terms provided he looked after himself at home and his work and continued to remain fit, and a limitation on his duties, avoiding heavy lifting et cetera, consistent with a bad back.
406       It was contended by counsel for the first defendant that the following facts are relevant to the plaintiff’s knowledge:

• He experienced episodic back pain in 1988, 1989 and 1990.

•

Compensation claims were lodged in relation to flare-ups in 1989 and 1990.
• He was examined by Dr Silver in May 1994.
• He gave evidence before the WorkCare Appeals Board on 7 July 1990.

•

The plaintiff was aware of a decision in his favour regarding the low back condition, resulting in an award of compensation for three weeks’ incapacity in July 1989 and four weeks in April 1990.

•

The lifting incident, as a consequence thereof the plaintiff received prolonged treatment from Dr Landsberger and Mr Carey over twenty seven months.

•

Dr Landsberger, on balance, explained to the plaintiff advice given by treating specialists.

•

In consequence of the 1994 injury and subsequent CT scan showing impingement, the plaintiff would have had knowledge this his low back condition warranted having extensive rehabilitation, radiological investigation, being extremely active, attending an orthopaedic surgeon and that there would be susceptibility to flare-ups from time to time and the need to take care.

•

As Dr Landsberger said in his evidence, without any shadow of doubt, he would have taken the plaintiff through Mr Carey’s opinion and he would have been very confident Mr Carey would also have explained his opinion to the plaintiff in great detail.

•

Dr Landsberger was very confident he had given the plaintiff this advice in relation to his condition and the need to find appropriate employment and he would certainly advise plaintiffs about ongoing care of their back and avoiding activities that might flare-up their problem.

•

The plaintiff knew when attending Mr Carey on 26 April 1996 that he had significant back pain as well as bilateral leg discomfort – he had undergone an MRI scan on 28 June 1996, which indicated there was two-level disc degenerative disease.
407       It was submitted by counsel for the first defendant that it is open to the Court to conclude the plaintiff was told by Dr Landsberger that he would have a permanent disability in the long-term sense and that he was advised against returning to his normal heavy work at Unilever. On balance, the plaintiff knew of his limitations in duties, namely avoiding heavy lifting or repetitive bending, consistent with a bad back, and it was not reasonable for him, by August 1994, to return to normal full-time work.
408       I accept Dr Landsberger’s evidence that between 1994 and 1996 he discussed the plaintiff’s back condition with him. He advised the plaintiff that he was not a suitable candidate for surgery. Further I accept he advised the plaintiff in 1994 to take it easy with his back and not to undertake heavy work at that time.
409       Accordingly, I reject the plaintiff’s evidence that Dr Landsberger only discussed surgery with him.
410       The plaintiff’s evidence in relation to what he was told by Mr Carey is confusing and inconsistent – at times saying Mr Carey discussed surgery with him and agreeing that he was aware of correspondence from Mr Carey to Unilever and then at other times saying Mr Carey did not really discuss anything much with him.
411       Knowledge of serious injury incapacity is not necessarily to be inferred from what Mr Carey and or Dr Landsberger advised the plaintiff. I am required to make an assessment of the plaintiff’s actual knowledge of these matters: see Nicolau, supra at para 47.
412       That assessment takes into account what the plaintiff did in terms of work, his general activities and the need for treatment after that time.
413       Whilst there was the lifting incident in 1994 and subsequent discussion in relation to surgery and the fact that it was not a preferred course, and that the plaintiff would face limitations in his heavy work, he was able to work full time first in cleaning jobs and then undertaking the nappy run and cleaning duties with the second defendant until suffering injury in 2006.
414       Before 2006, the plaintiff clearly exercised a work capacity beyond whatever medical advice he may have been given. When he commenced employment with the second defendant, he was fit and healthy and was not restricted in the performance of his duties by any back problems. Further, he did require treatment for about ten years until the aggravation of his back condition whilst working with the second defendant.
415       It was not until that time that the plaintiff became aware of serious injury incapacity related to his work – a situation I accept meets the level of impairment to which Glover and Cropp referred where the opportunity of doing other work – in this case relatively physical work - has been denied to a plaintiff by reason of his accident injuries. Also pain and suffering consequences became apparent at that time with interference in the plaintiff’s daily activities due to pain and the requirement for ongoing treatment and pain relief medication.
416       When looked at in light of Glover;[7] Mobilio;[8] and Cropp,[9] I accept that the plaintiff’s ongoing pain and incapacity to engage in pre-injury employment from mid 2006 were circumstances that would have resulted in leave being granted to bring proceedings.
[7]             State of Victoria v Glover [1998] VSCA 93
[8]             Mobilio v Balliotis [1998] 3 VR 833
[9]             Cropp v Transport Accident Commission & Anor [1998] 3 VR 357

Conclusions
417 Having undertaken an assessment of the plaintiff’s knowledge as at 23 December 2005, I am of the view that the plaintiff did not have the necessary subjective knowledge of the serious consequences imposed by the injury to his lower back, particularly in relation to his work capacity.
418 Accordingly, the plaintiff’s application for determination was issued within the expiration of three years after the date that he became aware of the serious injury incapacity arising from the injury. Thus, his application for leave to bring proceedings for damages pursuant to s.135A(4)(b) is granted.

Section 135AC - Psychiatric
419 The plaintiff maintained a claim for psychiatric injury pursuant to s.135A which it was submitted was a further factor bearing upon impaired earning capacity for the purposes of that section.
420 This matter was not really addressed in the running of the application nor in submissions.
421 I do not accept that the plaintiff at any time has had a psychiatric impairment arsing from his employment with the first defendant that meets the test of severe and his claim in this regard is therefore dismissed.

Claim v Second Defendant
422       I find the plaintiff suffered a compensable injury to his lumbo sacral spine in the course of his employment with the second defendant, namely an aggravation of pre existing degenerative disease.
423       I reject the opinion of Dr Davison who was alone in the view that he was not convinced any physical aggravation or acceleration occurred whilst the plaintiff was employed by the second defendant.
424       I am mindful of the fact that the second defendant accepted liability for the payment of weekly payments and medical expenses. This acceptance of liability may not be binding but as said by Ashley JA in Ansett v Taylor [2006] VSCA 171, such admission should ordinarily be regard as very significant: “albeit not conclusive because a defendant in a particular case might be able to satisfactorily be able to explain its conduct”.
425       No such explanation has been forthcoming in the present case.
426       It is the impairment not the injury which is the relevant issue for consideration. Whilst the plaintiff had suffered a prolapse prior to his employment with the second defendant, in my view the consequences of that condition did not become serious until 2006.
427       In this case where there is a pre existing back condition, I must consider what the evidence discloses as to the plaintiff’s prior back condition and determine whether the additional impairment resulting from his work with the second defendant from 2005 to the end of 2007 (“the last work period’) is serious and permanent.
428       In Petkovski v Galletti (supra), the Full Court of the Victorian Supreme Court accepted the proposition that –
“A comparison must be made of the condition of the applicant immediately before the accident with his condition thereafter and an assessment made of the extent of that additional impairment and if that additional impairment was not serious so it was said then leave must be refused. . . .”

429       In both Angelatos v Museum of Victoria (1999) 3 VR 157, at 162-163 and at 168, and in RJ Gilbertsons Pty Ltd v Skorsis (2000) VSCA 51, per Chernov JA at para 40, the Court of Appeal accepted that the principles in Petkovski v Galletti applied equally to serious injury applications under the Act.
430       In accordance with the principles in Grech v Orica Australia Pty Ltd and Anor (supra), provided the plaintiff establishes that the subject compensable injury during the work period materially contributes to his impairment and its consequences and will continue to do so permanently, the role of other injuries does not preclude a court concluding that there is the appropriate causal link between the compensable injury and the consequences relied upon.
431       Whichever approach is followed, the plaintiff, to reach the threshold of serious injury, is required to establish the aggravation during the last work period is permanent at the time of the hearing in its effects on his lower spine, and the effects of the aggravation must be serious: Barwon Spinners Pty Ltd v Podolak (supra).
432       I must be satisfied therefore that the aggravation resulting from the plaintiff’s employment with the second defendant can be described as “serious”, namely, whether the consequences to the plaintiff of the lower back injury when judged by comparison with other cases in the range of possible impairments or losses of body function may be fairly described as being more than “significant” or “marked” and at least as being “very considerable” – s.134AB(38)(c).
433       The statutory test requires a judgment based on an evaluation of all the evidence.
434       The term “serious” requires the impairment and its consequences to be reviewed objectively and also judged on an external comparative basis against other possible impairments not necessarily in the same category: see Humphries v Poljak (1992) 2 VR 129, at 170, accepted by the Court of Appeal in Barlow v Hollis (2000) 30 MVR 441; see in particular Chernov JA at para 29.
435       From 1996 until suffering injury whilst working with the second defendant, initially in mid 2005 and later more significantly in mid 2006 save for an attendance he could not recall in December 2002 when given two days off work for back pain, the plaintiff did not require medical treatment for his back. There were no other flare ups from 1996.
436       Prior to suffering injury with the second defendant, the plaintiff had been able to obtain employment in a variety of manual employment as the need arose but he no longer has that ability because of his back condition
437       The plaintiff was able to work full time in a cleaning job at the Town Hall from 1996 until late 2003 or early 2004. Whilst this job was not particularly heavy, the plaintiff was not restricted in his duties by his earlier back problems and he was not conscious of his back, “just getting on with doing his work”.
438       When retrenched from that job, the plaintiff was offered a heavier job driving a truck and digging holes but he did not want to do that sort of work. In cross examination the plaintiff agreed that heavy work was something he avoided over the years but he also said that he was not aware when he started work with the second defendant that he should avoid heavy lifting.
439       On commencing this job, the plaintiff had no problems with his back. He was “completely fit and could lift things up”. Whilst he agreed that there was not a great deal of heavy lifting involved in this job, there was constant bending to carry out deep cleans and then he encountered the specific problem with the replacement truck on the nappy run.
440       From the initial onset of pain in 2005 and more significantly as a result of his 2006 duties, the plaintiff’s ability to do unrestricted manual work has been compromised.
441       No doctor considers the plaintiff has a capacity for unrestricted manual work.
442       Mr Dooley considered the plaintiff was fit for light physical or clerical work and that the plaintiff needed to avoid work involving any heavy lifting or a lot of bending. Mr Shannon agreed the plaintiff was ill advised to return to work involving a lot of lifting and bending.
443       I accept that this interference with the plaintiff’s work capacity is a serious consequence.
444       I accept the submission by counsel for the plaintiff that the plaintiff’s evidence as to the pain and suffering consequences remained largely unchallenged in cross-examination.
445       The plaintiff has constant but variable pain. He experiences a lot of radiation of pain down his legs. He has difficulty sleeping, getting only four hours of broken sleep per night. He is unable to sit or stand for prolonged periods. If he over does things, such as housework, he has to lie down and rest.
446       The plaintiff requires ongoing treatment. He continues under the care of his general practitioner, Dr Cheeti. Also until recently the plaintiff received osteopathic treatment. He presently takes Mobic and Tramal for pain relief and he walks for exercise.
447       The plaintiff leads a rather sedentary lifestyle. He is unable to ride his push bike as much as he did in the past and he has difficulty driving for extended periods. Whilst it might be said in light of his failure to seek work having moved to Tongala that the plaintiff lacks some motivation, I accept that he has ongoing pain and restrictions related to his back condition.
448       There is no evidence or video surveillance film in this case which suggests that the plaintiff’s level of pain and disability is not as he describes. Further there is no medical evidence of any exaggeration or functional component to the plaintiff’s presentation.
449       Taking account all the evidence, I am satisfied that the aggravation of the plaintiff’s back condition whilst employed by the second defendant constitutes a serious injury and I grant leave to bring proceedings for damages for pain and suffering.

Loss of Earning Capacity
450       Having satisfied the narrative requirements to obtain leave in relation to loss of earning capacity, the plaintiff must also establish that –

(a) at the date of the hearing he has a loss of earning capacity of forty per cent or more – s.134AB(38)(e)(i); and also
(b) after the date of hearing the relevant loss of earning capacity will continue permanently – s.134AB(38)(e)(ii).
451       The measurement of loss of earning capacity is set out in paragraph (f) which requires a comparison between:

(i) “without injury” earnings; and
(ii) “after injury” earnings.
452       The former must be calculated by reference to the six year period specified in s.134AB(38)(f).
453       “Without injury” earnings consist of the gross income (expressed at an annual rate) that the worker was earning or was capable of earning from personal exertion or would have earned or would have been capable of earning from personal exertion had the injury not occurred.
454       It is to be calculated by reference to that part of the period within three years before and three years after the injury as most fairly reflects the worker’s earning capacity.
455       The plaintiff carries the onus of proof in relation to economic loss and particularly in establishing satisfaction of the criteria in paragraphs (e), (f) and (g) therein: See Barwon Spinners Pty Ltd & Ors v Podolak (2005) supra at para 70.
456       I am therefore required to determine a “without injury” earnings figure.
457       At the time he ceased work with the second defendant in January 2008, the plaintiff was working 7.6 hours per day five days a week earning $16.11 per hour, a total of $600 plus per week.
458       No submissions were made by either counsel as to the appropriate without injury earnings figure.
459       On the limited evidence available, I find therefore that the figure which most fairly reflects the plaintiff’s earning capacity but for injury is not less than $600 per week, sixty per cent of which is $360.
460       The plaintiff’s present income from personal exertion is nil.
461       I am not satisfied that the plaintiff has a permanent loss of earning capacity of forty per cent or more.
462       The plaintiff resigned from his employment with the second defendant at the end of 2007 of his own volition to move to Tongala because of his worsening financial situation. Had he not been experiencing financial problems. The plaintiff, on his own evidence, would have continued working in that job.
463       I do not accept that the plaintiff only left the second defendant’s employ because he believed he would be offered employment at Echuca. Joanne Milton, the second defendant’s business manager, who denied this was the case, was not required for cross-examination. Also, the plaintiff’s answers in relation to matters deposed to by her were confusing and inconsistent.
464       Further, at the time the plaintiff resigned, Dr Landsberger had cleared him to increase his hours to 7.6 hours on light duties and, in particular, certified him fit to perform driving duties up until February 2008. It was a surprise to him that the plaintiff had resigned because he considered that from a clinical point of view it was better for the plaintiff to continue to be active and to continue in gainful employment.

465       In late 2007, the plaintiff discussed with the second defendant’s management returning to driving work and that a vehicle would be provided. The plaintiff himself has described the driving job as “light” and “anyone could do it.” He felt capable of performing full-time work on this basis.
466       The plaintiff had been certified fit for a return to normal hours from 12 December 2007 and had discussed a return to work with WorkStreams Rehabilitation at that time. He was able to work increased full-time hours prior to Christmas 2007.
467       In these circumstances, I do not accept counsel for the plaintiff’s submission that the plaintiff was fit to do only the jockeying job which was not a real job and that the principles in Smorgon Steel Tube Mills Pty Ltd v Majkic [2008] VSCA 230, at 11, apply.
468       I do not accept the submission that when the plaintiff ceased work, he remained certified fit for only light duties in a protected work environment quite clearly tailored to meet his longstanding employment limitations. The plaintiff was in fact fit for full-time, light work and, in particular, driving.
469       The relevant consideration in this regard is the plaintiff’s capacity for employment not the availability of work: see State of Victoria v Rattray.
470       The plaintiff’s capacity was evidenced by the certification to return to driving duties and his own evidence that anyone could do the driving job. Mr Radley’s views as to the practicalities of obtaining employment in the country should therefore be viewed in that context. Further, I have difficulty accepting Mr Radley’s evidence because of the flawed history upon which it was based and the fact that he took on the role of an advocate for the plaintiff when giving evidence.
471       I do not accept that Dr Richards told the plaintiff he could not work. Dr Richards had actually told him that he was capable of performing lighter duties and he had continued giving him certificates to this effect.
472       Further, the plaintiff stated that when the case was over he planned to look for a job or something he could do, and he could then concentrate on that task. The plaintiff accepted that something like courier work was something he could possibly do. He could try console operating or taxi driving as long as there was not much lifting involved and he did not have to drive too far and could have breaks.
473       The preponderance of medical opinion is to the effect that the plaintiff possesses a capacity to work full-time in duties that do not involve heavy lifting, twisting or excessive bending or twisting and that the driving duties he was certified fit to perform as at January 2008 were suitable for him as at the date of the hearing.
474       Further, the plaintiff’s evidence is that there has not been any deterioration in his condition since he moved to Tongala. There is no medical evidence supporting any worsening of his condition.
475       Taking into account the work which the plaintiff was certified fit to perform at the time of his resignation, and the fact that the proposed job was a real one which the plaintiff clearly felt capable of undertaking, together with the preponderance of medical evidence, I am not satisfied that the plaintiff has a permanent loss of earning capacity of forty per cent or more that is permanent.
476       Having made this finding, I am not required to consider the issues of rehabilitation and retraining pursuant to Section 134AB(38)(g).
477       Accordingly, as the plaintiff has not satisfied the statutory criteria, his claim for loss of earning capacity is dismissed. Leave to bring proceedings for damages for pain and suffering is granted.

[2010] VCC 464

10 May 2010