Baird v VWA
[2024] VCC 1004
•5 July 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-23-05147
| Jay William Baird | Plaintiff |
| v | |
| Victorian WorkCover Authority | Defendant |
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JUDGE: | HIS HONOUR JUDGE GINNANE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 May 2024 | |
DATE OF JUDGMENT: | 5 July 2024 | |
CASE MAY BE CITED AS: | Baird v VWA | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1004 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION -
Catchwords: Serious Injury Application – lumbar spine – pain and suffering
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, ss 335, 325(1), 5(1).
Cases Cited:Barwon Spinners Pty Ltd & OrsvPodolak (2005) 14 VR 622; HuntervTransport Accident Commission & Avalanche [2005] VSCA 1; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Sabo v George Weston Foods [2009] VSCA 242; TTB SMS Pty Ltd v Reading [2020] VSCA 203; Humphries v Poljak [1992] 2 VR 199; Dwyerv Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Stijepic v One Force Group Australia Pty Ltd [2009] VSCA 181; Tatiara Wheat Co Pty Ltd v Kelso [2010] VSCA 12; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1;
Judgment: Application granted
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T. Monti KC Mr S. Carson | Arnold Thomas & Becker |
| For the Defendant | Mr C. O’Sullivan | Wisewould Mahoney |
HIS HONOUR:
Introduction
1Pursuant to section 335 of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (“the Act”) the plaintiff seeks the grant of a Serious Injury Certificate for pain and suffering for injury to the lumbar spine under paragraph (a).
2The plaintiff has an accepted injury. Causation was not contested by the defendant. There was not, for example, surveillance of the plaintiff to suggest that his account of limited activities since injury is other than he has deposed.
3The plaintiff was represented by Mr Monti of Kings Counsel together with Mr Carson of counsel. The defendant was represented by Mr O’Sullivan of counsel.
4The application was initially brought pursuant to paragraphs (a) and (c) of the definition of “serious injury” as that term is defined in section 325(1) of the Act. The particulars of physical injury relied on were:
a) Injury to the back and/or spine;
b) Referred pain and sensory disturbance in the lower limbs as a result of nerve root compromise in the spine;
c) Disc damage in the lower back;
d) Aggravation [sic] and/or exacerbation of pre-existing degenerative changes in the back and/or spine;
e) Anxiety and depression.[1]
[1]Particulars of Injury dated 24 October 2023.
Relevant Legal Principles – Serious Injury
5The Court must not give leave to a plaintiff unless it is satisfied, on the balance of probabilities, that the “injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in section 325(1) of the Act.
6Paragraph (a) of the definition of “serious injury” contained in section 325(1) of the Act reads:
“Serious injury” means –
(a) permanent serious impairment or loss of a body function; or
7To establish serious injury, the plaintiff must prove, on the balance of probabilities, that:
(a) “the injury” suffered by him arose out of or due to the nature of his employment with the employer on or after 1 July 2014;[2]
(b) “the injury” and resulting impairment must be “permanent” – that is, permanent in the sense that it is “likely to last for the foreseeable future;”[3]
(c) the “consequences” of the impairment in relation to “pain and suffering” must be “serious” – that is, the impairment or loss of body function “when judged by comparison with other cases in the range of possible impairments … may be fairly described as being more than significant or marked, and as being at least very considerable.”[4]
[2]Section 5(1)(a) of the Act; see also Barwon Spinners Pty Ltd & OrsvPodolak (2005) 14 VR 622 (“Barwon”).
[3] Barwon (2005) 14 VR 622, [111].
[4] Section 325(2)(c) of the Act.
8The requirement of a plaintiff to satisfy these elements in his or her specific case is sometimes referred to as the “narrative test.”
9In determining the “consequences” of the injury, the Court is required to consider the consequences to this particular plaintiff, when viewed objectively, arising from the injury.
10In determining the application, the Court:
(a) must not take into account psychological or psychiatric consequences of “the injury” for the purposes of paragraph (a) of the definition of “serious injury” – these can only be taken into account for the purposes of paragraph (c) of the definition of “serious injury;”[5]
(b) must assess whether “the injury” is a “serious injury” as at the time the application is heard;[6]
(c) must give reasons that disclose the pathway of reasoning in dealing with the evidence and issues raised by the application.[7]
[5] Section 325(2)(h) of the Act.
[6] Section 325(2)(j) of the Act.
[7] See generally HuntervTransport Accident Commission & Avalanche [2005] VSCA 1, [23]-[26].
11The question of whether an injury satisfies the narrative test is largely a question of impression or value judgement.[8]
[8]See Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592, 628 (Dodds-Streeton JA); see also Sabo v George Weston Foods [2009] VSCA 242, [67].
12In TTB SMS Pty Ltd v Reading,[9] Tate and T Forrest JJA emphasised the following considerations on a pain and suffering serious injury application, and these are:
(a) serious injury means permanent serious impairment or loss of a body function;[10]
(b) an impairment shall not be held to be serious unless the pain and suffering consequence is, when judged by comparison with other cases in the range of possible impairments or losses of a body function, fairly described as being more than significant or marked, and as being at least very considerable;[11]
(c) in assessing the seriousness of the claimed impairment consequences, a Court is required to consider both the effects of the impairment and those aspects of the affected body function which remain unaffected.[12]
[9] [2020] VSCA 203.
[10] Section 325 of the Act.
[11]Section 325 of the Act. This formulation picked up the language in Humphries v Poljak [1992] 2 VR 199, which concerned similar provisions in the Transport Accident Act 1986.
[12]Dwyerv Calco Timbers Pty Ltd (No 2) [2008] VSCA 260 (‘Dwyer’), [27] per Ashley JA; Stijepic v One Force Group Australia Pty Ltd [2009] VSCA 181, [44] per Ashley JA and Beach AJA; Tatiara Wheat Co Pty Ltd v Kelso [2010] VSCA 12, [77] per Ross AJA, quoting Dwyer [2008] VSCA 260, [27].
13When a plaintiff asserts he has suffered a serious injury by reference to a loss of earning capacity, the additional threshold he or she must establish at the date of the decision is:
(a) he or she has sustained a loss of earning capacity of 40 per cent or more; and
(b) he or she will, after the date of the decision, continue permanently to have a loss of earning capacity which produces a financial loss of 40 per cent or more.
The Documentary Evidence
14The plaintiff tendered the following evidence in support of his application:
(a) Three affidavits of the plaintiff dated 24 May 2023, 17 April 2024 and 6 May 2024;[13]
[13] Exhibit P1, Plaintiff Court Book (“PCB”) 5-17, 59-62.
(b) Affidavit of Sophie James dated 15 April 2024;[14]
[14] Exhibit P2, PCB 18-21.
(c) Medicolegal report of Dr Hazem Akil dated 26 February 2024;[15]
[15] Exhibit P3, PCB 22-25.
(d) Two reports of Dr Stiofan O’Conghaile dated 27 January 2022 and 12 April 2022;[16]
(e) Report of Mr Yagnesh Vellore dated 16 February 2024;[17]
(f) Report of Dr Andrew Marich dated 2 April 2024;[18]
(g) Report of Ms Lauren Davis dated 1 May 2024;[19]
(h) MRI of the lumbar spine dated 8 October 2021;[20]
(i) CT scan of the lumbar spine dated 21 September 2021;[21]
(j) Notice of impairment benefit liability and entitlement dated 31 March 2023;[22]
(k) Workers injury claim form dated 27 September 2021;[23]
(l) Employer injury claim report dated 1 October 2021;[24] and
(m) Claim review outcome letter dated 17 April 2023.[25]
[16] Exhibit P4, PCB 26-30.
[17] Exhibit P5, PCB 31-32.
[18] Exhibit P6, PCB 33-34.
[19] Exhibit P7, PCB 35-36.
[20] Exhibit P8, PCB 37.
[21] Exhibit P9, PCB 38.
[22] Exhibit P10, PCB 39-47.
[23] Exhibit P11, PCB 48-51.
[24] Exhibit P12, PCB 52-53.
[25] Exhibit P13, PCB 54-58.
15The defendant tendered the following evidence:
(a) Medicolegal report of Mr Barclay Reid dated 31 March 2023;[26] and
(b) Medicolegal report of Mr Ian Dickinson dated 8 April 2024.[27]
[26] Exhibit D1, Defendant Court Book (“DCB”) 5-11.
[27] Exhibit D2, DCB 12-27.
16In determining the outcome of the application, I have read and had regard to the exhibits, the plaintiff’s affidavit evidence, his cross-examination and re-examination, the evidence of the plaintiff’s wife who made an affidavit on his behalf, as well as the final addresses of counsel.
The Plaintiff’s Affidavits
The First Affidavit dated 24 May 2023
17In his first affidavit, the plaintiff described having sustained a serious injury to his back and/or spine, with the result that he experiences referred pain and sensory disturbance because of nerve root compromise, and consequential stress, anxiety and depression.[28]
[28] Exhibit P1, PCB 5-11.
Employment and Injury
18The plaintiff deposed that he worked for the defendant from March 2021 until October 2021, as a delivery driver of online grocery orders to customers. He said the work involved “extensive loading and unloading of crates onto and off trucks.”[29] He said that each crate or “tote” was meant to be a maximum of 15 kg, but their weights had increased significantly over time.
[29]Exhibit P1, PCB 6, at paragraph [5].
19The plaintiff described that on 19 September 2021, when he was lifting a crate, he experienced a sudden onset of “strong” pain in his lower back.[30] He described the pain as extending into his right buttock and leg, into his right foot and the sensation of pins and needles in his right buttock and thigh. He said it “seemed clear” that he had done something significant to his back. He went to his general practitioner (“GP”) and was referred off for scans.[31]
[30] Exhibit P1, PCB 7, [9].
[31] Exhibit P1, PCB 7-8, [10].
20In October 2021, the plaintiff resigned his employment with the defendant.
21The plaintiff has since obtained employment with the Coles Group, in a full time administrative position as a retail buyer. The plaintiff acknowledged that this constitutes better employment.
22The plaintiff deposed that he is provided and uses at work an ergonomic chair and a sit/stand desk. He said that he can only sit for 30 to 40 minutes before he needs to stand and move around. He deposed that from time to time he is required to fly interstate for work, including, to Western Australia, and that this can be a painful experience. He said he is allowed by his employer to book an economy X seat with extra leg room, but this extra accommodation only helps so much.
Consequences of Injury
23The plaintiff deposed that he is in “at least some pain all the time.”[32] He described the pain at its least, as five out ten, and at its worst, as eight out of ten. He said that bending and twisting causes his pain to flare-up, but that he can suffer a flare up for no obvious reason. He struggles to lift his two year old son and when he does so, it can trigger significant pain. He said his interactions with the toddler has been compromised.
[32]Exhibit P1, PCB 8, [14].
24The plaintiff deposed that he used to attend the gym regularly, played soccer at State reserves level, played tennis, golf and skied. He now avoids going out socially, as he struggles to sit down and he will leave a function early because of pain. He has a gardener which was not required before his injury.
Treatment
25The plaintiff deposed that in the wake of his injury he initially took Norflex and now takes Paracetamol or Ibuprofen. He deposed that if he can “put up with the pain” without taking tablets, then he will.[33] However, if his back is “really playing up” then the “tablets don’t seem to be able to do much at all.”[34] He said that lately he had been taking two Paracetamol and two Ibuprofen tablets daily, in an effort to temper the “harshest edge” of his pain.[35]
[33]Exhibit P1, PCB 10, [21].
[34] Exhibit P1, PCB 10, [22].
[35] Ibid.
26The plaintiff said his physical injuries have taken an emotional toll on him, such that he commenced seeing a psychologist in the middle of 2022.
The Second Affidavit dated 17 April 2024
27The plaintiff deposed in his second affidavit that his pain and restriction have remained the same.[36]
[36]Exhibit P1, PCB 13-17.
28He is still employed at Coles, in a role that is “not stressful” on his back as was his previous employment.[37] He said that he mostly works from home and has one day in the office once a week or once a fortnight. He works four days per week for ten hours each day and he has Wednesday off, as a break to rest his back. He deposed that notwithstanding the use of an ergonomic chair and sit/stand desk, sitting or standing brings on increased pain within a few minutes.
[37]Exhibit P1, PCB 14, [3].
29The plaintiff said that his level of pain builds as the day progresses and that he has to lie down at the end of the day, and he struggles with “even very light chores.”[38] He said that his wife carries the heavier grocery bags when they shop. He walks the dog at his local park for 40 minutes, but he needs to sit down and break the walk into two parts.
[38]Exhibit P1, PCB 15, [7].
30He located the pain as in the middle of his lower back and travelling down to his coccyx.
31The plaintiff deposed that since March 2024, he has been able to return to the gym, and now has a routine of light exercises he performs that place minimal stress on his lower back. He said he is happy to be a little more active, but the limited nature of his activities reminds him of how active he used to be, and his compromised abilities causes him upset.
32The plaintiff deposed to receiving treatment by way of weekly physiotherapy and myotherapy sessions, and fortnightly psychology sessions.
33The plaintiff deposed that he was not previously aware of the presence of Baastrup disease in his spine.
The Third Affidavit dated 5 May 2024
34A supplementary affidavit was sought to be filed and relied on by the plaintiff on the morning of the hearing. It provided greater details about his previous and numerous sporting pursuits.[39] The receipt of the affidavit it was opposed by the defendant and after hearing the objection, I received it.
[39]Exhibit P1, PCB 59-62.
35In his further affidavit the plaintiff deposed that he once:
(a) did cardio and weights at the gym most days of the week, trained at home during COVID, and could lift 50 kilograms above head height. He now performs a routine of exercises recommended by his physiotherapist. He thinks that he can now manage about 20% of the exercises that he could perform prior to his back injury.
(b) played soccer in the “State 2 Reserves” for a team called Skye United. He estimated that he ran about 8 km in a game, but has not played since his injury and would not be able to, as his “back simply wouldn’t be up to it.”[40]
(c) regularly played tennis at Sandhurst Tennis Club with a friend named Jim. They usually played two or three time a week for three sets, and he was so proficient at tennis that he would “often drop a set to keep Jim in the match.”[41] He said that he has not been able to play tennis since his back injury.
(d) played golf most weekends at Yarra Bend Golf Course at 110 over 18 holes. He could walk up to 10 kilometres when playing, but no longer plays due to back pain.
(e) went skiing once or twice a year for a few days at Mount Buller and considered that he was an “advanced intermediate” skier.[42] Although he has not tried to ski since the injury, he did not think his back would be up to it.
[40] Exhibit P1, PCB 60, [3].
[41] Exhibit P1, PCB 60, [4].
[42] Exhibit P1, PCB 61, [6].
Affidavit of Sophie James
36Ms James is married to the plaintiff. She was not required by the defendant for cross-examination on the contents of an affidavit made by her in support of her husband’s application.
37Ms James said that her husband used to be active and fit, however, since his back injury she has observed in him a dramatic change. She has witnessed him struggling in pain and needing to move about and alter his position because of it.
38Ms James deposed that she has needed to take over several jobs around the house previously performed by the plaintiff. She said she now does the shopping either on her own or with the plaintiff, and she could not remember the last time he went alone grocery shopping. She said that she “almost always” lifts the heavier grocery items.[43]
[43] Exhibit P2, PCB 20, [7].
39Ms James noted how for example that when the plaintiff leans over to put plates into the dishwasher, she is aware that it triggers pain. She said he also has trouble picking up and dealing with their son.[44]
[44] Exhibit P2, PCB 20, [8]-[9].
The Plaintiff’s Medical Evidence
Dr Hazem Akil
40Neurosurgeon Dr Akil prepared a medicolegal report dated 26 February 2024, at the request of the plaintiff’s solicitors.[45] Dr Akil related that the plaintiff had reported to be suffering from:
persistent lower back pain in the midline of the lumbosacral region going all the way to the coccyx. He told me that he feels significant improvement when he lies supine. He feels that the pain can shoot down his right buttock and leg all the way to the foot frequently, particularly when he does any kind of physical activities like lifting his child.[46]
[45] Exhibit P3, PCB 22-25.
[46]Exhibit P3, PCB 23.
41Dr Akil diagnosed the plaintiff with an injury to the interspinous ligaments between L4 and L5. However, Dr Akil was not convinced of the presence of Baastrup’s disease. He considered that the plaintiff might also present with elements of sacroiliac joint dysfunction, that had been caused by work incident.
42Dr Akil thought that the plaintiff’s prognosis was guarded and that he would suffer permanent restrictions in prolonged sitting or standing for more than 20 minutes, lifting objects heavier than 5 kilograms, and repetitive bending pushing and pulling.
43Regarding future treatment, Dr Akil identified ongoing analgesia and physiotherapy.
Dr Stiofan O’Conghaile
44Dr O’Conghaile is the plaintiff’s treating pain specialist. On 27 January 2022, he referred the plaintiff to neurosurgeon Mr Vellore for treatment.[47] He provided a report to the defendant insurer dated 12 April 2022.[48] Both his referral and his reporting were relied on in evidence by the plaintiff.
[47]Exhibit P4, PCB 26-27.
[48]Exhibit P4, PCB 28-30.
45Dr O’Conghaile assessed the plaintiff via a telephone consultation. He wrote to Mr Vellore that he had reviewed the plaintiff’s MRI scan from October 2021, and there was no significant pathology, and he thought that Baastrup’s disease was likely to be the cause of the plaintiff’s pain.
46His second report to the defendant insurer consisted of a request for targeted injections to manage the Baastrup disease.[49]
[49] Ibid.
Mr Yagnesh Vellore
47Mr Vellore provided a report to the plaintiff’s solicitors dated 16 February 2024.[50] He reviewed the plaintiff on 23 December 2021. He has not seen the plaintiff since. At the date of his review the plaintiff reported that after the injury, he experienced “pain travelling through the gluteal area into the right foot.”[51]
[50] Exhibit P5, PCB 31-32.
[51] Exhibit P5, PCB 31.
48The plaintiff told Mr Vellore that the gluteal and leg element of his pain had resolved and that he was mainly suffering from “axial pain perceived at the lumbosacral junction in a relatively focused area in the midline. He described the pain as being troublesome with a mechanical element. He described a dull, throbbing sensation with most severe pain on movement.”[52]
[52] Ibid.
49Mr Vellore said that the plaintiff’s MRI scan had demonstrated interspinous inflammatory changes at L4-L5 and L5-S1, which he thought was in keeping with Baastrup's disease.
50Mr Vellore said he had referred the plaintiff for a CT/SPECT scan that was conducted on 3 February 2022, that demonstrated no active disc disease or lumbar facet arthropathy. However, there was an accumulation of FDG[53] noted between spinous process of L4 and L5, which he said, suggested underlying Baastrup's disease.
[53] An abbreviation of fluorodeoxyglucose.
51Mr Vellore reported that Dr O’Conghaile had used targeted injections to assist the plaintiff’s symptoms, but they had only provided him with a few weeks of pain relief before his symptoms returned. Mr Vellore said he understood that further injections had been planned by Dr O’Conghaile.
52Mr Vellore diagnosed interspinous ligament damage to L4-L5. He thought that the plaintiff’s prognosis depended on the outcome of treatment with a pain specialist and of further injections, but it was likely guarded.
Dr Andrew Marich
53Dr Marich is the plaintiff’s treating GP and provided a report to the plaintiff’s solicitors dated 2 April 2024.[54] Dr Marich said that the plaintiff first consulted him on 31 August 2022, and he had last seen the plaintiff on 2 April 2023.
[54]Exhibit P6, PCB 33-34.
54Dr Marich said the plaintiff’s diagnosis was “lumbar back pain” the prognosis of which was “relapsing and remitting”.[55] Dr Marich said the plaintiff had reported struggling with household duties, especially those that include bending, twisting or lifting, for example, emptying the dishwasher, gardening, mowing, cleaning and vacuuming.
[55]Exhibit P6, PCB 33.
Ms Lauren Davis
55Ms Davis is the plaintiff’s treating myotherapist. In a letter to the plaintiff’s solicitors dated 1 May 2024, she said that as a myotherapist, she was precluded from offering a diagnosis of the plaintiff injuries.[56] She said that she had performed remedial massage on the plaintiff since 3 November 2023.
[56] Exhibit P7, PCB 35-36.
56Ms Davis said the plaintiff had told her that sitting for more than 20-30 minutes caused him to suffer increased pain.
57Ms Davis recommended that the plaintiff continue rehabilitation in the form of physiotherapy and remedial massage.
Radiology
58The plaintiff tendered:
(a) an MRI scan of his lumbar spine taken on 21 September 2021, it recorded “essentially a normal examination”;[57]
(b) a further MRI scan of his lumbar spine conduced on 8 October 2021, which found “no suggestion of any canal, subarticular recess or foraminal narrowing. Mild interspinous inflammatory changes at the L4-5 and L5-S1 level in keeping with mild Baastrup's disease. No significant facet arthritis.”[58]
[57]Exhibit P9, PCB 38.
[58] Exhibit P8, PCB 37.
The Defendant’s Medical Evidence
Mr Barclay Reid
59Mr Reid is a general surgeon who assessed the plaintiff at the request of the defendant insurer for the purpose of his impairment benefits claim, and prepared a report dated 31 March 2023.[59]
[59] Exhibit D1, DCB 5-11.
60The plaintiff reported to Mr Reid no prior lower back history.
61Concerning the plaintiff’s treatment, Mr Reid noted that:
(a) Mr Vellore had not considered operative treatment was required; and
(b) Dr O’Conghaile had diagnosed interspinous bursitis (Baastrup’s disease). There had been treatment with injections, which had reportedly helped the plaintiff for a few weeks only, and he also had taken muscle relaxants and pain killers.
62Mr Reid said that the plaintiff reported that his current symptoms were those of continuous lower back pain in the order of 5 out of 10, as well as occasional episodes of sciatic pain.[60] The plaintiff told Mr Reid that his last episode of sciatic pain was in around February 2023, when he picked up his young son, who weighed about 12 to 15 kilograms. The plaintiff said he could sit for about 45 minutes, walk for about half an hour, and drive for up to one hour. He told Mr Reid that he was managing his pain with Paracetamol and Ibuprofen, taken once every couple of days.
[60] Exhibit D1, DCB 6.
63The plaintiff told Mr Reid that as a result of his injury, he was no longer weightlifting (whereas he used to deadlift 100-110 kilograms) and he could no longer play soccer.
64Mr Reid described the plaintiff as presenting with a “musculoligamentous injury of the lower back mainly involving the interspinous ligaments. This seems to have settled to a significant extent and his signs are now minimal.”[61] He thought that the plaintiff’s prognosis for his lower back was “good” and that he expected the plaintiff’s symptoms to resolve in a further year or two.[62] He advised him to avoid work involving heavy lifting and repeated bending.
[61]Exhibit D1, DCB 8.
[62] Ibid.
65Mr Reid assessed the plaintiff with a 5% whole person impairment as a result of his injury to the lumbosacral spine, attributable to the work injury.
Mr Ian Dickinson
66Mr Dickinson, is an orthopaedic surgeon, and he provided a medicolegal report to the defendant’s solicitors dated 8 April 2024.[63]
[63] Exhibit D2, DCB 12-27.
67Mr Dickinson took a history of the plaintiff’s treatment of:
(a) three cortisone injections (performed by Dr O’Conghaile) but that he said had been of no help;
(b) ongoing physiotherapy, remedial massage and hydrotherapy;
(c) the taking of Meloxicam and Palexia following the incident, however, because of side effects from Palexia he had ceased all medication, however, he had since recommenced taking Meloxicam occasionally, as well as Tapentadol; and
(d) attendance on a psychologist and the recent commencement of Duloxetine.
68Addressing the consequences of injury, Mr Dickinson wrote that the plaintiff told him that he does “little” household work, and that it can now take him up to two hours to load the dishwasher, and afterwards he can experience three to four days when his back is very sore.[64]
[64]Exhibit D2, DCB 18.
69Mr Dickinson said the plaintiff told him that he cannot do the gardening and that he can only drive for 30 minutes without discomfort. He said that he does not see his GP, other than for prescriptions for Duloxetine. He said he used to attend F45 gym classes four days a week, had been in the State Seconds Soccer League, had played golf, tennis and skied. However, since the accident his exercise was limited to walking the dog every second day.
70Mr Dickinson reviewed the following radiology:
(a) CT scan of lumbar spine dated 21 September 2022, which reportedly showed no abnormality; and
(b) Bone scan and SPECT scan of 3 February 2022, which suggested “a very early region of Baastrup’s disease”.[65]
[65] Exhibit D2, DCB 20.
71The plaintiff told Mr Dickinson that he suffered from pain in the lower lumbar spine, into the right buttock and right leg, which sometimes travelled down the right leg below the knee to the ankle.
72Mr Dickinson wrote:
The presenting condition is of pain of unknown origin. There are no significant abnormal clinical findings and the radiological findings are not the cause of these complaints.[66]
[66]Exhibit D2, DCB 23.
73Mr Dickinson wrote that Baastrup’s disease was an “uncommon but well known variant of the lumbar spine and of no significance.”[67] He said that the cause was congenital but he did not think it was affecting the plaintiff’s presentation, and if it was, then the injections the plaintiff had in the area should have resolved the symptoms even in the short term.
[67] Ibid.
74Mr Dickinson suggested that there was a functional component to the plaintiff’s presentation. He wrote:
The symptoms of which Mr Baird complains are not consistent with the radiological findings. There is no evidence of any nerve root compression, and clinically, there is no evidence of any abnormality. The point of the source of the pain was in the mid-sacral region. There was no complaint of pain in the lumbosacral region.
There were otherwise no clinical abnormalities.
There were no physical manifestations of an abnormal pain presentation but there were no findings consistent with the complaints of pain.[68]
[68] Exhibit D2, DCB 25.
75Mr Dickinson thought that the plaintiff would be “fully fit for any activity.”[69] He did not think any purpose was served by the plaintiff continuing physiotherapy, or hydrotherapy.
[69] Ibid.
Evidence in Chief
76As is usual, the plaintiff confirmed that he had recently read his three affidavits and that their contents were true and correct.
77Mr Monti asked the plaintiff some additional questions about his weight. The plaintiff said that prior to the injury he weighed 78 kilograms. In December 2023, his weight had increased to its heaviest of 97 kilograms, but he now weighed 92 kilograms. The plaintiff attributed his recent 5 kilograms weight loss to commencing a course of antidepressants, which in turn led him to abstain from drinking alcohol for 12 weeks.
Cross Examination of the Plaintiff
78Mr O’Sullivan questioned the plaintiff about his weight loss, and if he accepted that the period of time he had abstained from alcohol explained his weight loss, and although the plaintiff agreed, he went on to say that he disputed that his weight gain was due to him drinking too much but was because he was less active, because of his physical injury.[70]
[70] T 14, L 29-31.
Employment
79The plaintiff said that when the injury occurred he was working part-time, about 25 hours a week, whereas he is now working in a full time job with Coles. He said his job involves some interstate travel, and so far he has travelled to Western Australia, Queensland, New South Wales and the Australian Capital Territory. He estimated that he flies interstate twice a quarter, or eight times a year, with the longest flight being to Western Australia, where he has been three times in the last two years. He said that his work will “happily upgrade” him from economy to economy X, but not to business class.[71] He said economy X offers him the space to stand and extra leg room. During the course of a flight he will stretch as has been suggested to him by his physiotherapist.
[71] T 16, L 16-17.
80When asked by Mr O’Sullivan if he could “cope” with the demands of travel, the plaintiff said that he “manages to deal with it in certain ways”.[72] He agreed that when he arrives at his destination, there will need to be a mix of sitting down and walking around and visiting retail stores.
[72]T 16, L 26-28.
81The plaintiff said that he attends Coles Head Office in Tooronga infrequently, perhaps once a week, or once a fortnight. His current working arrangement enables him to work from home four days a week. When attending on site he drives himself from his residence in Mount Martha, a journey that takes approximately 50 minutes each way.
82Mr O’Sullivan directed the plaintiff to the report by his GP, Dr Marich of 2 April 2024, that included:
Mr Baird reports less frequent social interactions than prior to his injury - he finds prolonged sitting is a problem and his back pain prevents him travelling to and from social events.[73]
[73]Exhibit P6, PCB 33.
83Mr O’Sullivan put to the plaintiff that in light of his ability to travel to and from work for 50 minutes each way and perform a day’s work, this tended to contradict an inability to attend to social events. The plaintiff maintained that going out socially resulted in significant pain if he was seated for extended periods. He added that attending work was not discretionary but was necessary to support his family, whereas he could choose not to attend a social event.
The Plaintiff’s Activities and Sporting Pursuits
84The plaintiff agreed with Mr O’Sullivan that his walking tolerance has improved over time and he can walk his dog three days a week. He said that having followed instructions from his physiotherapist, his walks have increased from 10 to 40 minutes, with a break in between when he will sit down, for about five minutes.
85Mr O’Sullivan suggested to the plaintiff that his ability to attend the gym has also improved over time. The plaintiff agreed, but said that the improvement was very recent, and he had commenced back at the gym eight weeks prior to the hearing, having not been there since the injury occurred. The plaintiff said he is doing “very light duties” at the gym, with exercises that have been written for him by his physiotherapist.[74]
[74]T 19, L 25-27.
86The plaintiff agreed with Mr O’Sullivan that he is enjoying being back at the gym, and he also agreed he can undertake a range of exercises, and also that he was adding additional exercises to his program to increase his gym activity. He said he would like to return to the level of fitness he had prior to the injury, where he could dead lift 100 kg. He agreed that his physiotherapist was encouraging him to go to the gym with a view to increasing his activities over time, but the plaintiff stressed that he was on “a very modified program tailored to ensure the back injury is not flared up.”[75]
[75] T 20, L 13-14.
87In many serious injury applications, there still remains contests about activities that could or could not be pursued during the various restrictions to personal freedoms and commercial undertakings imposed by the State government in response to Covid. Prior to the plaintiff’s injury, Victoria was subject to a variety of restrictions on personal movements. However, the plaintiff was adamant that he was playing soccer on a consistent basis up until his injury, notwithstanding Covid restrictions. In the 2020 and 2021 seasons, he said that he was training consistently, but he said that competitive matches were stop/start due to government restrictions.
88The plaintiff said that without injury and prior to Covid, he was able to play whenever a soccer match was scheduled. He said the soccer season ran from April to September. At the tail end of the 2021 season, games were halted due to Covid. The plaintiff said that he could not recall what restrictions existed during the 2020 season. He denied Mr O’Sullivan’s suggestion that he was making up his evidence as he went along. I note that no evidence was led by the defendant identifying the dates of the various lockdowns or restrictions that were in place at different times.
89The plaintiff said that during the lockdowns and the imposition of a five kilometre restriction on travel from an individual’s residence, he lived in a different area and was not a member of Skye United, and he agreed that he would not have been playing or training at that time.
90Mr O’Sullivan suggested that the plaintiff’s ability to play tennis at Sandhurst Tennis Club would have been similarly impacted by restrictions, and in the 18 months before the injury occurred, he would have played very little tennis. The plaintiff “disagreed” with the suggestion that he would have barely played a game in 18 months.[76]
[76] T 22, L 28.
91The plaintiff said that he used to play golf at Yarra Bend very frequently. He said that prior to the Covid lockdowns, he played every week as his “old job as a beer supplier” to Yarra Bend came with the “perk” of access to the golf course every Saturday.[77] However, the plaintiff agreed with Mr O’Sullivan that he would have barely played a game of golf in the 18 months prior to injury, and he said that golf was the least frequent sport he played.
[77] T 23, L 1-3.
92As to skiing, the plaintiff could not recall the last time he skied. He agreed with Mr O’Sullivan that it was a minor interest because the season is short but he said he was an enthusiast, although in terms of priorities, he said he said that he would not miss a soccer game in order to ski.
93The plaintiff has a two year old son, who was born three months prior to his injury. He agreed that parenting is time consuming, but that he puts effort into being a good father. Mr O’Sullivan suggested to the plaintiff that the discretionary time he would have for his numerous sporting interests, simply no longer exist as a parent. The plaintiff said:
There is always time to do something that you're so passionate about, and Your Honour, I would just like to say that football has been a huge part - soccer has been a huge part of my life since the age 6 where I was part of a team in the UK and have been a part of a team in a sporting club for so long that it's something that I just miss just due to this injury, cannot be part of a club, cannot play football in the [same] capacity or any capacity. Yeah, I just wanted to mention that.[78]
[78]T 24, L 4-13.
94Mr O’Sullivan suggested to the plaintiff, in light of all of his commitments, even if he possessed “a perfect back”, he could not possibly continue engaging in playing high level soccer, playing two or three games of a tennis a week along with a game of golf on the weekend. The plaintiff said that “he most certainly could” and that he would spend time with his son when he was not playing sport.[79]
[79] T 24, L 14-20.
Treatment
95The plaintiff said that he is taking Ibuprofen and Paracetamol for pain. Mr O’Sullivan suggested to him that this is inconsistent with the contents of his second affidavit, where he deposed to the treatment he was receiving in these terms:
As for treatment, it doesn’t seem that there is much more that the doctors can now do for me. I am taking Duloxetine for my mental state. I understand that this can also help with how the brain responds to pain. I stopped other painkillers last year as they were doing very little and sometimes nothing at all to help. I most certainly didn’t stop taking painkillers as my back pain has somehow improved. I put up with a lot of pain every single day.[80]
[80]Exhibit P1, PCB 16, [12].
96Mr O’Sullivan observed that the plaintiff had not deposed to taking either Paracetamol or Ibuprofen. The plaintiff said that he is taking Duloxetine for depression and anxiety, and is taking Panadol and Ibuprofen for pain “as and when required so very infrequently, but just as and when needed.”[81]
[81]T 26, L 12-14.
97The plaintiff said he may need to take two each of Panadol or Ibuprofen at a time, up to twice or three times per week.
98The plaintiff is seeing psychologist Dr Thane Camwell to manage his depression and mental health issues. He said he had previously seen Ms Lawrence, a psychologist, over a period of four or five months. He said he had commenced with Dr Camwell around eight months ago, on referral from his GP. He said he had commenced on Duloxetine on Dr Camwell’s recommendation, because he was experiencing suicidal thoughts due to ongoing pain but fortunately this was no longer the case.
Activities of Daily Living
99To Mr O’Sullivan’s question, whether he tries to do a bit to help out around the house, the plaintiff said, “that’s correct.”[82] Mr O’Sullivan referred to Mr Dickinson’s report of 8 April 2024 in which he wrote:
Mr Baird told me that he does little of the household work. He said that he used to be able to manage such things as the dishwasher very easily but now it can take up to two hours to load the dishwasher. He then has three or four days when his back is very sore following this. He said he cannot do the gardening.[83]
[82]T 29, L 27.
[83]Exhibit D2, DCB 18.
100The plaintiff maintained his account that it takes him two hours to load the dishwasher, and that his back can be sore for three to four days if he has done so. This exchange with Mr O’Sullivan occurred:
So despite the fact you're back at the gym doing some exercises, you're working full-time, you can travel interstate for work, do you seriously tell His Honour it takes you two hours to load the dishwasher? ---It can take up to two hours, that's correct.
I suggest, Mr Baird, you are completely exaggerating your symptoms, what do you say to that? ---I completely disagree, I'm not exaggerating.
How much is going in the dishwasher when it takes you two hours to load it? ---Could you elaborate on what you actually mean by how much? Yes.
How much crockery and cutlery is going in the dishwasher when it takes you two hours to load to? ---That would be plates from the week or during the week, or over the weekend, knives, forks, glasses, a regular amount I would guess.
So what do you do, a couple of minutes and then time off, and then a couple of minutes and - - -? ---That's right, it's stop start, stop start stop start.
Over a period of two hours? ---Up to two hours.
Up to two hours. So what's the norm? ---There is no norm, it just depends how the back is at the time and if I continue or if I don't.[84]
[84] T 30-31, L 11-3.
101Mr O’Sullivan asked the plaintiff why he had deposed that his injury had cost him a job[85] when at the time he made that statement he had already obtained full time and better employment that was more in keeping with his qualifications and interests. The plaintiff agreed that he had found a job which was much more rewarding. Mr O’Sullivan suggested that the plaintiff was trying to paint a picture that the consequences from his back injury were much worse for him. The plaintiff agreed that he had not wanted to be lifting boxes for a living for the rest of his working life.
[85]Exhibit P1, PCB 11, [24].
102Mr O’Sullivan challenged the plaintiff’s account that his life has become consumed by pain but the plaintiff maintained that he would describe his life in those terms notwithstanding, that he manages a full time job, which he agreed was rewarding, and has, for example, been able to return to the gym.
Re-Examination
103The plaintiff said that when he travels interstate for work, he always requests the aisle seat at row three, which gives him additional space in front to stand up and stretch as is needed and that is a little bit wider.
104The plaintiff said that Coles had requested him to come into head office of a Tuesday so that he doesn’t lose touch with his team, but he said he will only do the drive on a Tuesday if he thinks his back won’t flare-up. He said that over a trial period of 12 weeks since this directive had been implemented, he had been unable to attend the office on six Tuesdays due to his pain.
105The plaintiff said that when he first recommenced at the gym, he began with core strengthening exercises, but without any weight loading on his lower back. The exercises he performs are in consultation with, and have been modified by his physiotherapist, whereas before he injured his back, he did “everything” at the gym.[86] He said this included picking weights up off the ground, performing deadlifts up 100 kg. He used to attend the gym five days a week, and he now goes three or four days a week.
[86] T 36, L 9.
106Prior to Covid, the plaintiff said that he played Second Division soccer over the course of three years, competitively once a week and trained threes time a week. He said he had played tennis two to three times a week, and golf once a week.
107The plaintiff said that from the age of six he had always been part of a sporting club and doing the same when he arrived in Australia from England, provided him the opportunity to meet new people. He said that having the outlet of physical exercise and competitive sport taken away from him was hard to take, and soccer had had always been his number one sport.
108The plaintiff said he ceased Palexia because he experienced a disrupted stomach, diarrhoea, nausea and occasional vomiting.
109The plaintiff said that around eight to ten weeks ago, his dosage of duloxetine increased from 30 mg to 60 mg.
110The plaintiff explained that the difficulty he has loading the dishwasher is because of consistent and repetitive bending down to pick up and put down items in the dishwasher that results in a flare up of back pain.
111The plaintiff said that his statement his injury had cost him his job, was intended to highlight the fact that he had been forced to resign his employment due to the injury.
112The plaintiff said that his reference to being consumed by pain, was intended to convey that he has had “pain every minute of every day” since the injury.[87] He said that sometimes the pain is so severe that he is unable to leave the house and needs to lie down, whilst on other days, it is less severe such that he is, for example, able to drive to work.
[87] T 39, L 23.
Defendant’s Submissions
113Mr O’Sullivan submitted that there were two hurdles to the plaintiff’s application. First, the identification of a current impairment from injury that is producing consequences and, second if the plaintiff is able to discharge that first burden, then whether the consequences fall within the range required as that term is understood.
Diagnosis
114Mr O’Sullivan observed that although the VWA had accepted an injury to the plaintiff’s spine, that acceptance has been qualified by the passage of time and the recent opinion of Mr Dickinson.
115Mr O’Sullivan addressed Baastrup disease and whether the plaintiff’s injury is an aggravation of a congenital condition. He said that no doctors who had commented on Baastrup disease had provided an opinion that it had been aggravated by employment. He noted that treating pain specialist, Dr O’Conghaile had opined that the gluteal element of the plaintiff’s pain had resolved, although his examination of the plaintiff was undertaken via telehealth. Dr O’Conghaile had reviewed the plaintiff’s MRI, and it affirmed his opinion that there was no significant pathology.[88] Dr O’Conghaile also thought that injections would settle the Baastrup disease, it being what he believed was the likely cause of the plaintiff’s pain.
[88] Exhibit P4, PCB 26.
116Mr O’Sullivan submitted that Dr Akil was an outlier when he wrote of the plaintiff that “clinically, he feels the pain is slightly lower down than when [sic] the Baastrup is. It is possible that he has elements of sacroiliac joint dysfunction as well based on my examination.”[89] Mr O’Sullivan submitted that Dr Akil had not provided a reliable diagnosis of the plaintiff’s condition.
[89] Exhibit P3, PCB 24.
117Mr O’Sullivan was critical that the plaintiff’s treating physiotherapist Broden Bird, had not provided a report, and neither had the plaintiff’s treating psychologist Dr Camwell. Mr O’Sullivan argued that the absence of a report from Dr Camwell, in circumstances where he had been treating the plaintiff with Duloxetine for his mental state, that was of such severity that it had included suicidal ideation was glaring, and more so, in light of Mr Dickinson’s view that there was no radiological basis to explain the plaintiff’s pain and that both he and Dr Reid had noted the absence of muscle wasting, or any suggestion of radiculopathy as well as Mr Dickinson’s view, that there was a functional element to the plaintiff’s condition. Mr O’Sullivan submitted that I should draw an adverse inference due to the lack of a report from Dr Camwell.
118Mr Reid had conceded that the plaintiff had suffered injury, and in the context of accepting the plaintiff’s impairment benefits claim for a lower back injury wrote as follows:
4.1 Diagnosis
He has had a musculoligamentous injury of the lower back mainly involving the interspinous ligaments. This seems to have settled to a
significant extent and his signs are now minimal. The worker continues to suffer from a medical condition relevant to the alleged injury.
4.2 Prognosis
The prognosis of the lower back is good and I would expect that his symptoms would resolve in a further year or two. It is advisable for him to avoid any work which involves heavy lifting or repeated bending or heavy pulling and pushing. He should be able to continue to perform the activities of daily living on his own.[90]
[90] Exhibit D1, DCB 8.
119Mr Reid had also reported that the plaintiff had no previous symptoms in his lower back, and that all of his reported symptoms had commenced with the work injury. Mr O’Sullivan submitted that despite such opinion, it was not sufficient to satisfy the statutory serious injury test and the discharge of the plaintiff’s burden of proof.
120Mr O’Sullivan’s sought to buttress his submission by referring to Mr Dickinson’s opinion who reported:
The presenting condition is of pain of unknown origin. There are no significant abnormal clinical findings and the radiological findings are not the cause of these complaints.
… The radiology is normal except for the fact that there are “kissing spines” otherwise known as Baastrup’s disease.
This is an uncommon but well known variant of the lumbar spine and of no significance.[91]
[91] Exhibit D2, DCB 23.
Range
121Mr O’Sullivan submitted that although the defendant did not make what he characterised as an “out and out credibility attack”[92] on the plaintiff, nonetheless, he submitted that the plaintiff had overstated the extent of his pain and very probably the extent of involvement in the very many sporting activities he had detailed. Mr O’Sullivan submitted that I should be sceptical of the level of activity the plaintiff claims to have engaged in prior to his injury, or that he could have expected to continue to participate to the level he had described prior to his injury, whilst working full time 10 hours a day, four days a week, along with contributing to his family life as a husband and father to a young child.
[92] T 50, L 10-11.
122Mr O’Sullivan agreed that the plaintiff’s evidence was that, but for the Covid restrictions inhibiting his ability to participate in various sporting activities, he had the physical ability to do so, until his injury. However, he submitted that the plaintiff’s life was very different now, working in a busy job and with a young son at home, such that I should not accept that even if the plaintiff had “a perfect back at the moment” he would be participating in a round of golf every weekend, two or three games of tennis per week, two soccer training session per week and a match of weekly soccer and five session at the gym per week.[93] Mr O’Sullivan said the plaintiff’s evidence of that level of activity was implausible.
[93] T 52, L 9-14.
123Addressing what the plaintiff has retained by comparison with what has been lost, Mr O’Sullivan contended that the plaintiff’s application fell short of constituting a serious injury. Mr O’Sullivan observed that the plaintiff has graduated from working in a part time manual job, to a meaningful full time job that he enjoys. He returned to the gym. Remedial massage, which Mr Dickinson said is not warranted, is the extent of physical treatment.
Plaintiff’s Submissions
124Mr Monti urged me to accept that the plaintiff has a passion for soccer, which he had played competitively every year since the age of 11, and up until his injury, other than in the first three years after he arrived in Australia. Mr Monti submitted that its loss is a very relevant consideration when assessing the loss of enjoyment of life consequences, of his injury.
125On the question of the proper identification of injury, Mr Monti referred to the report of Mr Vellore, the plaintiff’s treating neurosurgeon and, in particular:
At the time of injury he described the pain travelling through the gluteal area down into the right foot... He described the pain as being troublesome with a mechanical element… The MRI scan demonstrated mainly interspinous inflammatory changes at L4-L5 and L5-S1 in keeping with Baastrup’s disease… Thus, in summary… injury as relating to his back consists of interspinous ligament damage to the L4-L5, requiring pain management with Dr O’Conghaile.[94]
[94]Exhibit P5, PCB 31.
126Thus, Mr Monti submitted, Mr Vellore had identified interspinous ligament damage to L4/5, a diagnosis he had arrived at after taking a history of the injury and having considered the radiology. Mr Vellore had considered as well, how the plaintiff’s injuries had affected his ability to perform his normal occupation because he presented with restrictions, and had reported the continuing experience of pain despite having attended pain management.
127Mr Monti contended that the plaintiff suffered injury to the interspinous ligamentous process at L4/5 and likely L5/S1, and whether the Baastrup disease had been aggravated because of it, or his injury was not associated with the Baastrup disease, nonetheless, he had identified injury at those levels of the lumbar spine.
128Mr Monti accepted that although there was some conflict in the medicine, on balance there was an organic injury to the spine. This had a contemporaneous connection to the work injury that was reported by the plaintiff and had been accepted by the defendant.
129Mr Reid had diagnosed the same injury as Mr Vellore and Dr Akil, that is, a musculoligamentous injury of the lower back mainly involving the interspinous ligaments.
130Mr Monti addressed Mr Reid’s opinion that the plaintiff’s injury has resolved. He submitted that the view that it has resolved, is in stark contrast to Mr Reid who in the same report opined that the plaintiff had suffered a 5% whole person impairment as a result of the work-related injury, and which was accepted by the VWA.
131Mr Monti accepted that the evidence is of an improvement in the plaintiff’s condition, however, he submitted the extent of improvement was not such that the plaintiff’s injury could not be classified as serious.
132The plaintiff had obtained a full time job that was more remunerative, his pain relief was by way of need to consume Paracetamol and Ibuprofen, which Mr Monti said was borne out of necessity, noting the side-effects the plaintiff reported to Mr Dickinson of taking stronger pain relieving medication such as Meloxicam, Palexia and Tapentadol.
133Mr Monti contended that on a consideration of the evidence as a whole, the plaintiff’s consequences are serious because of the restrictions and diminutions in his previously unfettered capacities for activities at home, and in his employment. Due to the degree of pain he suffers, he has been prevented from attending the office 50 percent of the Tuesdays he is expected on site, and although he is required to take interstate flights, and does so, they prove difficult because of his pain.
134Mr Monti submitted that the plaintiff had been frank and that it would be difficult to make a serious attack on his credit given that he had conceded improvement and acknowledged that he had returned to some adjusted activities in the gym.
135Mr Monti said that the absence of a report from the treating psychologist was not relevant, as no claim was made pursuant to sub-paragraph (c).
136Mr Monti submitted that despite the fact of the plaintiff having obligations as a husband and father to a young son, I should not find that his young family would have interfered with his ability to pursue his passion for soccer, and that he would undoubtedly still be pursuing if he was fit and able.
Analysis and Findings
137On balance, I am satisfied that the plaintiff is entitled to relief by way of a certificate for pain and suffering. My reasoning follows.
138The plaintiff presents with an accepted work injury.
139I do not regard that the issue joined between the parties by way of the identification of injury is of any great moment because, I am satisfied that the plaintiff has proved the existence of an organic injury that continues to present him with symptomology. I prefer Mr Vellore’s opinion, and I accept a diagnosis of interspinous ligamentous process at L4/5 and likely L5/S1, that is to say, a musculoligamentous injury of the lower back mainly involving the interspinous ligaments due to his work incident. The presence of Baastrup disease and whether it has been aggravated by the organic injury, would not result in a different outcome.
140In arriving at my conclusion, I have not been hindered by the absence of a report from the plaintiff’s treating psychologist, and I do not regard its absence in an application pursued under paragraph (a) of the definition of serious injury, as warranting the making of an adverse inference as was submitted was called for by the defendant. Perhaps the plaintiff’s treating physiotherapist Broden Bird, could have provided a report.[95] However, in light of the balance of my reasoning I do not consider the lack of the same as tipping the outcome differently.
[95]The plaintiff deposed in his affidavit dated 17 April 2024 that he continued to have ongoing physiotherapy from Broden Bird. The plaintiff’s GP Dr Marich in his report dated 2 April 2024 also reported that the plaintiff continues to see Mr Bird for weekly physiotherapy sessions. Neither a report from Mr Bird nor any of his clinical notes were tendered in evidence.
141It is a relevant consideration but not a determinative factor against a finding of seriousness, that the plaintiff is able to work in a better and more satisfying job than prior to injury. The plaintiff ceased his pre-injury employment because of his injury, but he has since obtained better remunerated and more satisfying employment. However, the plaintiff said, and I accept, that he has been unable to attend on site at work on about half of the Tuesdays he is expected to, since that requirement was introduced by his employer. There is no evidence to suggest that the plaintiff has been unable to work from home. The plaintiff’s pain has not precluded him travelling interstate for work and this has included flights to Western Australia. The plaintiff agreed that on arrival interstate, he is expected to attend to work duties.
142I have, however, taken into account the plaintiff’s evidence that he needs special consideration when flying, and this is provided by his employer allowing him to book what he described, as an economy X seat. This, he said, provides somewhat better leg room along with him standing and moving about during a flight but he is still hampered by pain.
143Overall, I accept that the plaintiff experiences pain that on occasions can prohibit his capacity to drive to work when it is expected of him, and when travelling by air, he does so accompanied by pain which he manages better with some additional seat space. I have taken into account that in Haden Engineering Pty Ltd v McKinnon (“Haden”), in addressing the effects of impairment to work, the learned President said:
As to capacity for work, it is necessary to identify whether and to what extent the plaintiff is prevented by the pain from performing the duties of his/her previous employment. The fact that the plaintiff has been able to return to full-time employment does not preclude an affirmative finding of serious injury. It is simply one of the matters to be taken into account. What matters in this regard is the extent to which ‘an area of work which [the plaintiff] enjoyed has been closed off to [him or her].’[96]
[96] Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1 (“Haden”), [15].
144The plaintiff’s attitude and stoicism is commendable, but the effects of his injury should not be lessened in such an application as this, because of his fortitude in providing for his family.
145Reference is often made to certain of the indicia otherwise expressed in Haden, and while they are helpful, such guidance is not intended to be prescriptive and an assessment of seriousness in a given case should not be made according to a static checklist and by totting up as if of a ledger, but instead, by way of an overall assessment and analysis of the evidence having regard to the consequences to the plaintiff of an impairment to function from the affected body part, and a judgment of where the same falls in comparison with like impairments.
146President Maxwell in Haden, identified a non-exhaustive and non-prescriptive list of ordinary activities which may be affected by a “very considerable” injury and they included interference to:
· sleep;
· mobility;
· cognitive functioning (whether directly because of the pain or indirectly because of the effects of pain-relieving medication);
· capacity for self-care and self-management;
· performance of household and family duties;
· recreational activities;
· social activities;
· sexual life; and
· enjoyment of life.[97]
[97]Ibid, [16].
147The plaintiff relies on some of the considerations identified above. I accept that he no longer possesses unrestricted mobility to walk, and the length of time he can drive has been affected.
148The loss of the ability to play the many sports the plaintiff attested to, but most notably, soccer is a significant loss to the plaintiff. I have not lost sight of the suggestion made to the plaintiff under cross-examination, that even if he did not labour from the pain and restrictions of his injury, given his workload and family obligations, it is unrealistic to believe he could have maintained that degree of interest and participation. I think that somewhat misses the point that before injury he very well could do so, and because of his injury he now cannot, and that is unlikely to change much for the better. How the plaintiff would have been able to manage and allocate his time and the division of work, family and his sporting activities does not gainsay what I accept was a substantial pre injury capacity for the many sporting and recreational activities to which he deposed.
149The performance of household duties by the plaintiff would seem to have been only moderately affected, as evidenced for example, by the plaintiff’s account that he no longer does gardening, and he has employed a gardener and he no longer grocery shops alone.
150There was no evidence to suggest that the plaintiff is unable to manage his self-care.
151There is no evidence the plaintiff’s sleep is affected, or that there has followed an interference in his intimate life.[98] Neither has the injury and its aftermath appeared to have had any cognitive effects.
[98]The plaintiff did not depose to any effect on his sleep. However, Dr Akil’s report of 26 February 2024 Exhibit P3 recorded at PCB 24 that “sleeping is interrupted infrequently.” It was also noted in the claim outcome review letter, Exhibit P13, that on 19 December 2022, the plaintiff had reported experiencing disturbed sleep regularly in a questionnaire provided to the defendant insurer.
152I accept the plaintiff’s evidence and that was corroborated by his wife, that repeated bending over in order to stack a dishwasher causes him pain and that it can last a short time or a number of days. The evidence on the issue was somewhat odd, but I consider it more probably the case, that there are occasions the plaintiff loads the dishwasher over time, the total of which may be up two hours. Having examined the transcript, I think this is more probably what the plaintiff was intending to convey and not that he needs to be engaged in the exercise for two continuous hours.
153In terms of the plaintiff’s reliance on a reduction in his ability to attend social activities, he said that any attendance that requires travelling of any length of time is difficult because of pain. I accept the plaintiff’s explanation that if he is in pain the option to opt out of going out socially weighs more easily than does avoiding work.
154Having accepted the plaintiff’s evidence on the matters of substance he testified about, it follows that I found the plaintiff to have been a credible witness. I found that he gave his testimony in a frank and straightforward manner.
155What may be gleaned from the plaintiff’s account of pain and the means he adopts to manage it, as part of the overall assessment of the seriousness of his impairment? The plaintiff’s medication is limited despite his description that his pain is at its least, five out ten, and at its worst, eight out of ten and that he is experiencing “pain every minute of every day” and since the injury that he is in “at least some pain all the time.”[99] The plaintiff’s explanation for not taking stronger or prescribed pain relieving medication, is that they have not done him any good, and as he reported to Mr Dickinson, stronger pain relieving medication such as Meloxicam, Palexia and Tapentadol have been accompanied by adverse side effects. This has resulted in him limiting himself to Paracetamol and Ibuprofen. I accept his evidence. The plaintiff also deposed that if he can “put up with the pain” without taking tablets, then he will.[100] However, if his back is “really playing up” then as he put it, the “tablets don’t seem to be able to do much at all.”[101] He said that in recent times he has been taking two Paracetamol and two Ibuprofen tablets daily, in an effort to take the “harshest edge” away from his pain.[102] Recourse to pain relieving Paracetamol and Ibuprofen and physiotherapy and myotherapy were not required by him before his injury.
[99]Exhibit P1, PCB 8, [14].
[100]Exhibit P1, PCB 10, [21].
[101] Exhibit P1, PCB 10, [22].
[102] Ibid.
156While it is important to analyse ‘what remains’ so far as the plaintiff’s incapacity is concerned, that analysis must be seen in the context of what has been, and will likely remain lost. Pain and restrictions have accompanied the plaintiff since injury and although there has been some functional improvement, I am satisfied pain and reductions across the many aspects of the plaintiff’s life and work are permanent. Synthesising all of these matters, I am persuaded that the plaintiff’s injury meets the very considerable test.
157Put shortly, in the circumstances of this application, the various consequences I have found that are suffered by the plaintiff are, of themselves, enough to mandate a conclusion that he has suffered a serious injury. Even if some of the consequences when looked at individually may only fairly be described as ‘significant’, when considered collectively, and given the importance to the plaintiff of the losses identified, including sport and unfettered capacity to work as required, and diminutions in his flexibility with his child, and adaptations to his fitness, I am satisfied he has discharged his burden and that his injury by way of impairment to his spine is very considerable and may be fairly assessed as such when measured according to range.
158I will grant the application and hear the parties on the question of costs.
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