Benfari v Connolly Environmental (Aust) Pty Ltd
[2017] VCC 85
•22 February 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-16-00359
| MICHAEL BENFARI | Plaintiff |
| v | |
| CONNOLLY ENVIRONMENTAL (AUST) PTY LTD | Defendant |
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JUDGE: | HER HONOUR JUDGE TSALAMANDRIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 February 2017 | |
DATE OF JUDGMENT: | 22 February 2017 | |
CASE MAY BE CITED AS: | Benfari v Connolly Environmental (Aust) Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 85 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious Injury– injury to the cervical spine – pain and suffering
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Ansett v Taylor [2006] VSCA 171; Petkovski v Galletti [1994] 1 VR 436; Peak Engineering & Anor v McKenzie [2014] VSCA 67; Poholke v Goldacres Trading [2016] VSCA 232; Acir v Frosster [2009] VSC 454; Herald and Weekly Times v Jessop [2014] VSCA 292; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Kelso v Tatiara Meat Co Pty Ltd [2007] VSCA 267; ACN 005 565 926 Pty Ltd v Snibson [2012] VSCA 31
Judgment: Leave granted in respect to pain and suffering
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S Bailey | Slater & Gordon Ltd Lawyers |
| For the Defendant | Ms S Manova | Russell Kennedy Lawyers |
HER HONOUR:
Preliminary
1 The plaintiff commenced work with the defendant, as a driller, in August 2007. He claimed that the work involved heavy and repetitive lifting, and that such duties resulted in him suffering an aggravation of degenerative changes in his cervical spine.
2 This is an application for leave to bring proceedings pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”). The application is made under sub-section (a) of the definition contained in s134AB(37) and the plaintiff seeks leave to claim damages for pain and suffering only. The body function said to be impaired is the functioning of his spine.
3Ms S Bailey of counsel appeared for the plaintiff and Ms S Manova of counsel appeared for the defendant.
4Only the plaintiff was called to give evidence and he was cross-examined. Also in evidence were medical reports and other material. I have read these tendered documents, together with the transcript of the proceedings. I shall not refer to all of that material in the course of this judgment, but rather to those parts of the evidence and reports which I consider necessary to give context to and explain the conclusions reached in my judgment.
Relevant background
1The plaintiff is 44 years of age. He lives with his wife and two daughters, aged six and eight.
2The plaintiff attended school to Year 12, after which time he undertook a range of different jobs, including as a vegetable grower, an employment consultant, a waiter and bar attendant. The plaintiff also obtained a certificate in remedial massage and worked for a period of time as a masseur.
3Prior to commencing his employment with the defendant, the plaintiff said that he was generally fit and well, and he did not recall any prior problems with his neck or right shoulder.[1]
[1]Plaintiff’s Court Book (“PCB”) 1
4In his leisure time the plaintiff enjoyed body boarding. He commenced this activity approximately 20 years ago when living on the Gold Coast and, for the two years that he lived there, he went body boarding most days.[2] Upon returning to live in Melbourne, the plaintiff said that he went body boarding at Ocean Grove and Phillip Island, and that he went nearly every weekend during the summer months,[3] and occasionally in the winter months, with use of a wetsuit and Vaseline to counter the cold.[4]
Injury and its consequences
[2]Transcript (“T”) 44, Line(s) (“L”) L31, T45 L1-5
[3]PCB 4
[4]T45, L11-18
5The plaintiff commenced employment with the defendant, as a driller, in August 2007. He worked on rigs, which involved lifting heavy drill pipes, lifting bags of sand and cement, as well as pushing and pulling activities.[5]
[5]PCB 2
6In mid-2008, the plaintiff developed pain in his neck with referred pain into his right shoulder. He reported it to his employer.
7The plaintiff obtained some physiotherapy treatment for his neck and right shoulder from physiotherapist, Ms Sue Gertzel, [6] which was paid for by the defendant.[7]
[6]Exhibit C - medical report of Sue Gertzel dated 1 April 2010
[7]PCB 2
8In February 2010, the plaintiff resigned his employment with the defendant in order to take up a clerical job with an employment agency.[8]
[8]PCB 2
9In his letter of resignation dated 6 February 2010, the plaintiff stated that he had decided not to pursue drilling work as it had a “major impact on my home life”.[9] When asked about this letter in cross-examination, the plaintiff said that he had not enjoyed being away from his family when working on the rig.[10] The plaintiff further said that he did not refer to his ongoing neck pain in his letter of resignation, as he “did not want to make an issue of the fact that there was pain happening.”[11]
[9]Defendant’s Court Book (“DCB”) 66
[10]T32, L11-15
[11]T31, L30-31, T32, L1
10In April 2010, the plaintiff lodged a WorkCover claim which was accepted. He remains in receipt of medical and like expenses,[12] and has also received a lump sum benefit for permanent impairment pursuant to s98C of the Act.
[12]T22, L1-2
11In approximately July 2010, the plaintiff was referred to a psychologist, as he felt stressed and depressed from the pain that he was experiencing in his neck.[13]
[13]PCB 2
12The plaintiff also attended his general practitioner, Dr Manal Saka, on a regular basis regarding his ongoing neck pain.[14]
[14]PCB 21
13On 23 August 2011, a CT scan was performed on the plaintiff’s cervical spine, which demonstrated multilevel degenerative disc disease, contributing to multilevel central canal stenosis and cord compression. It was noted that there was severe right C5-6 foraminal stenosis.[15]
[15]PCB 34
14Dr Saka then referred the plaintiff to neurosurgeon, Associate Professor Gavin Davis, who examined the plaintiff on 23 November 2011. Associate Professor Davis obtained a four year history of neck pain, exacerbated by certain movements, and noted that the plaintiff suffered from constant neck pain that was associated with pain radiating into his head, shoulder and scapular region.[16] He further noted that there were no neurological abnormalities and he arranged for an MRI scan to be performed.
[16]DCB 17
15On 12 December 2011, an MRI scan was performed of the plaintiff’s cervical spine, which demonstrated substantial cervical disc degeneration with multilevel mild central canal compromise with cord indentation.[17]
[17]PCB 35-36
16Associate Professor Davis considered that the degenerative changes in the plaintiff’s cervical spine were more marked than would ordinarily be expected of a 38 year old male.[18] Given the multilevel nature of the plaintiff’s degenerative disease, Associate Professor Davis did not recommend surgery, but instead referred the plaintiff for a pain management program with Dr Terrence Lim.[19] Associate Professor Davis stated that, in his opinion, the plaintiff had the capacity to perform his pre-injury duties and did not suffer from an impairment.[20]
[18]DCB 18
[19]PCB 18
[20]DCB 19
17In his report dated 8 August 2012, Associate Professor Davis stated that the plaintiff’s employment “did not contribute to the degenerative change of the cervical spine”.[21] It should be noted that Associate Professor Davis did not express an opinion as to whether the plaintiff’s work duties were responsible for an aggravation of that underlying condition.
[21]DCB 18
18The plaintiff subsequently attended upon Dr Terence Lim, and underwent a six month outpatient pain management course.[22] At the conclusion of that course, it was noted that the plaintiff was “doing extremely well with good pain control and more importantly the knowledge and skill base to manage himself.”[23] The plaintiff said that at the time he was discharged, he had been prescribed Lyrica by Dr Lim, for which his general practitioner thereafter continued to provide prescriptions.[24]
[22]T19, L27-30
[23]DCB 15
[24]T20, L22-24
19The plaintiff subsequently transferred his care to general practitioner, Dr Jagdish Trivedy, at the Lakes Boulevard Medical Centre in South Morang, whom he continued to consult on a regular basis. Dr Trivedy continued to prescribe medication for the plaintiff, including Lyrica and at times Panadeine Forte, Endep and Tramadol.[25]
[25]PCB 22, 24 and 26 and Exhibit B , clinical notes from Dr Trivedy
20The plaintiff also obtained some physiotherapy treatment, as well as osteotherapy and myotherapy. The plaintiff’s osteopath, Dr Shannon Walsh, provided a report dated 22 February 2015, in which she detailed the plaintiff’s attendances upon her clinic for treatment regarding his ongoing neck pain. It was noted that he would attend when there had been an aggravation of his neck pain, and that such attendances could be every few weeks, or not for a few months.[26]
[26]PCB 32
21The plaintiff said that over the years, his flare-ups have become more frequent and more intense,[27] but that he has not obtained regular osteopathic treatment for the last 12 months, as he finds it a hassle to obtain payment from the insurer and he cannot afford the treatment himself.[28]
[27]T23, L28-31, T24, L1-11
[28]T21, L27-31
22In May 2015, the plaintiff reported that he had come off the Tramadol medication[29] as it was making him “feel dizzy and unwell”.[30]
[29]Exhibit B
[30]PCB 4
23In May 2016, the plaintiff developed lower back pain whilst moving small rocks in his garden.[31] The plaintiff attended upon Dr Trivedy, who arranged for an x-ray to be taken of his lumbar spine. The x-ray, taken on 2 June 2016, demonstrated an L5-S1 anterolisthesis with pars defect.[32]
[31]T27, L23-31, T28, L1-4
[32]PCB 28
24Dr Trivedy then referred the plaintiff to neurosurgeon, Mr Ivan Bhaskar, who examined the plaintiff on 4 July 2016. Mr Bhaskar noted that the plaintiff had been in excruciating pain for three to four weeks and that he was hunched over most of the time.[33]
[33]Exhibit 2, medical report of Mr Ivan Bhaskar dated 4 July 2016
25Mr Bhaskar arranged for an MRI scan to be taken in mid-July 2016, which demonstrated a Grade 1 slip at L5-S1 causing severe bilateral foraminal stenosis with disc degenerative disease at L4-5. Mr Bhaskar recommended surgery as the best treatment option, with the intention to perform an anterior lumbar interbody fusion at L4-5 and L5-S1 with posterior fixation.[34]
[34]Exhibit 2, medical report of Mr Ivan Bhaskar dated 18 July 2016
26The plaintiff said that he was advised to lose weight prior to undergoing such surgery.[35]
[35]T27, L7-8
27On 21 June 2016, the plaintiff consulted Dr Trivedy, and the medical record stated that the plaintiff had been experiencing burning pain in his neck. After a long discussion, it was decided to try and increase his Lyrica dosage to 125 milligrams and, if possible, to 150 milligrams.[36]
[36]Exhibit B
28On 3 November 2016, the plaintiff again attended Dr Trivedy, at which time it was noted that the plaintiff had a “fair ammount (sic) pain in neck and lower back in last one month. Is awaiting back surgery”.[37] At this attendance, it was noted that the plaintiff should try and increase his Lyrica dose to 125 milligrams in the morning and 150 milligrams at night. Tramadol was also prescribed “as required”.[38]
[37]Exhibit B
[38]Exhibit B
29In his recent report dated 24 January 2017, Dr Trivedy referred to the plaintiff’s ongoing neck pain and stated that an opinion from a neurosurgeon regarding the need for surgery would be appropriate. He stated that the plaintiff was on the same medication, that the doses had been adjusted, and that he was currently taking Lyrica and Tramadol on a regular basis.[39]
[39]PCB 26
30Dr Trivedy also referred to the x-ray performed on the plaintiff’s lower back on 2 June 2016, but did not then refer to the plaintiff’s referral to Mr Bhaskar or the proposed lower back surgery.
31The plaintiff’s most recent affidavit sworn 18 January 2017, made no mention of the lower back pain which he had experienced in mid-2016, nor of his referral to Mr Bhaskar and the proposed lower back surgery. When asked about these omissions in cross-examination, the plaintiff acknowledged that there was no reference to such matters in his affidavit.[40] He was not then asked to explain these omissions, nor was it put to him that he had deliberately attempted to conceal this from the court.
[40]T28, L20-22
32The plaintiff said that his lower back pain has settled significantly and that he is feeling strong in the lower back.[41] The plaintiff is currently on the waiting list for lower back surgery.[42]
[41]T28, L23-31, T29, L1-5
[42]T29, L 28-31
33The plaintiff said that, as a consequence of his ongoing neck pain, and the increased frequency and intensity of the flare-ups, that he had increased his medication.[43] He denied that the increase in medication was related to his lower back pain.[44]
[43]T30, L7-10
[44]T30, L1-10
34The plaintiff said that he suffers from constant fluctuating neck pain, which extends into his right shoulder and upper arm. He said that he is never free of neck pain and that he lives with it on a daily basis. He said his symptoms are worse in cold weather and are aggravated by activity.[45]
[45]PCB 3
35The plaintiff said that the flare-ups can be brought on by small activities such as washing his hair or brushing his teeth, and that the pain associated with such a flare-up can now last for up to a week, whereas when he initially suffered the injury, the flare-up would last for only two days.[46]
[46]T24, L7-11
36The plaintiff currently takes Lyrica twice daily; 150 milligrams in the morning and 175 milligrams in the evening. He also takes 50 milligrams of slow release Tramadol twice a day. In addition, he often supplements those medications with a couple of Panadol, which he takes most days.[47]
[47]PCB 7
37The plaintiff said that the medication makes him feel that he is in a bit of a haze.[48] Because of this, he does not feel “present”[49] either at work or at home. He said he often forgets things and feels distracted.[50]
[48]PCB 7
[49]PCB 8
[50]PCB 8
38Since ceasing his employment with the defendant, the plaintiff has continued in full-time employment. He initially undertook a clerical position with an employment agency for approximately six months, before then obtaining a position as national training and development manager for Ostara Australia. He then subsequently worked in a contract position as regional manager in a disability employment assistance program for Wesley Mission. He ultimately ceased that contract, as he had completed the work he had set out to do,[51] and had also encountered some difficulties with people at his workplace.[52]
[51]T36, L26-29
[52]Exhibit 2
39In addition, the plaintiff claimed that his ongoing neck pain, together with the feeling that he was always in a “bit of a haze”[53] played a role in him deciding not to continue at such a high level of management. He has instead obtained a less demanding job as a business development manager with CVGT Australia. The plaintiff said he has less responsibility in this job, as well as less driving and client interaction.[54] He said that he felt the “heavier”[55] medication had contributed to the loss of his career drive.[56]
[53]PCB 7
[54]PCB 8
[55]PCB 8
[56]PCB 8
40The plaintiff also said that his relationship with his wife has been affected by his neck injury and that his interest in sexual relations has dropped dramatically.[57]
[57]PCB 8
41The plaintiff said that he is not able to play with his children in the way that he would like.[58] He also said that he feels his patience has diminished such that he sometimes locks himself in the bathroom for 20 minutes to calm down.[59] The plaintiff said that his tolerance levels are significantly lower than what they were before he suffered his neck injury.[60]
[58]PCB 8
[59]PCB 8
[60]PCB 8
42The plaintiff said that he is still able to help out with housework, but that he does it in short bursts and takes rests.[61] The plaintiff said he is able to do gardening, but he finds that activities such as using the whipper snipper aggravate his neck pain.[62]
[61]PCB 8
[62]PCB 9
43The plaintiff said that he was able to paint the inside of his house in approximately 2011, but that he did so slowly and that it resulted in increased neck pain.[63]
[63]T53, L1-31, T54, L1-3
44The plaintiff said that he has tried body boarding on a few occasions since suffering his neck injury, but that this activity aggravated the pain in his neck, such that he is no longer able. He said that when he now goes to the beach with his daughters he will either sit on the beach or go for a walk.[64] He said he feels frustrated when he sees other people body boarding.
[64]PCB 9
45The plaintiff had previously enjoyed long distance running and had undertaken a 15 kilometre city to sea run in November 2013 and a 21 kilometre half marathon in October 2015.[65] He said that he currently runs three to five kilometres, two times a week, and that this helps him stabilise his lower back condition. He said, however, that he has not been able to undertake the longer distance runs in recent times, as he feels that such running aggravates his neck and, together with the effects of the medication, he feels that it is now just too much for him.[66]
Plaintiff’s medico-legal evidence
[65]T48, L11-25
[66]T54, L28-L31, T55, L1-9
46The plaintiff’s solicitors arranged for the plaintiff to be examined by orthopaedic surgeon, Mr Russell Miller, in December 2016. In his report dated 30 December 2016, Mr Miller noted the plaintiff’s presenting complaint of neck pain with discomfort radiating into the shoulders, particularly the right shoulder. It was also noted that the plaintiff has suffered anxiety and depression, and has developed a chronic pain syndrome.[67]
[67]PCB 39
47Mr Miller then stated that the plaintiff “complained of no other specific orthopaedic symptomatology”.[68]
[68]PCB 39
48Mr Miller examined the plaintiff and reviewed the radiology films. He ultimately concluded that the plaintiff suffered a musculoligamentous strain to the cervical spine and aggravation of degenerative disease in the cervical spine. He considered there was significant radiation into the plaintiff’s right upper extremity.
49Mr Miller was of the opinion that the plaintiff’s pre-existing degenerative disease had been aggravated by the physical work he had performed with the defendant. Mr Miller believed that the effects continue to account significantly for his current clinical status.[69]
[69]PCB 42
50In his report, Mr Miller stated that the plaintiff had difficulty walking long distances due to problems with neck pain. However, this part of the medical report was not put to the plaintiff in cross-examination.
51In her closing submissions, Ms Manova submitted that I should disregard Mr Miller’s opinion, on the basis that he had not been provided with the medical reports of Associate Professor Davis or Dr Lim, and that he had obtained an incorrect history regarding the plaintiff having difficulty walking long distances.
52The plaintiff also relied upon four medico-legal reports obtained by the defendant, all of which supported the plaintiff’s claim that his work had contributed to the onset of the aggravation of the degenerative changes in his spine, and that such aggravation continued to be work-related.
53In a report dated 20 May 2010, consultant surgeon, Mr Peter Scott, accepted that the plaintiff’s employment was the cause of the plaintiff’s neck pain.[70]
[70]DCB 26
54In a report dated 19 April 2012, consultant neurosurgeon, Mr David Brownbill, noted that the plaintiff suffered pain in his neck all of the time.[71] Further, he stated that the plaintiff’s workplace activities with the defendant probably aggravated his significant degenerative spine condition, and that the aggravation still materially contributed to the need for medical treatment.[72]
[71]DCB 31
[72]DCB 34
55In a report dated 4 May 2015, orthopaedic surgeon, Mr Michael Shannon, stated that the degenerative changes in the plaintiff’s spine would not have been caused by his employment, but would have been aggravated by it. He considered that the plaintiff’s neck symptoms were consistent with the type of work he was performing and that such duties could aggravate the underlying degenerative change.[73]
[73]DCB 39
56In a report dated 21 August 2015, general surgeon, Associate Professor Anthony Buzzard, also accepted that the nature of the plaintiff’s work, at the time of the onset of his symptoms, probably aggravated the plaintiff’s previously asymptomatic degenerative disease in his cervical spine.[74]
Defendant’s medico-legal evidence
[74]DCB 48
57The defendant relied upon an opinion of Mr Kevin Siu, that the aggravation of the plaintiff’s degenerative condition is no longer related to his employment with the defendant.
58In his first report dated 30 November 2015, Mr Siu noted that the plaintiff had ongoing neck pain and that, on average, one or two days a week his pain levels would be 2 or 3 out of 10, but that one day a week it would be so bad, that the pain would reach 9 out of 10.[75]
[75]DCB 53
59Mr Siu considered that the plaintiff’s significant cervical spondylosis at such an early age was likely to have a congenital basis to it. He was also of the opinion that the overhead work carried out by the plaintiff had brought about his neck and right shoulder pain. He considered, however, that as at November 2015, the aggravation from the plaintiff’s employment with the defendant had ceased as the plaintiff was, at that time, working in an office. [76]
[76]DCB 54
60In a subsequent report dated 30 January 2017, Mr Siu re-examined the plaintiff and considered additional medical material, including the report of Associate Professor Davis. Mr Siu reiterated his opinion that the work-related aggravation has now ceased.[77]
[77]DCB 60
61Mr Siu was of the opinion that the plaintiff suffered some restriction in his activities of daily living, especially sporting activities.[78]
[78]DCB 60
62The defendant also tendered a medical report from orthopaedic surgeon, Mr Michael Dooley, dated 27 January 2017. In this report, Mr Dooley noted that prior to the plaintiff commencing his employment with the defendant, his established degenerative disc disease in the cervical spine had been asymptomatic. Mr Dooley considered that the work-related aggravation still materially contributed to his ongoing symptoms.[79]
Credibility
[79]DCB 64
63I consider the plaintiff to be creditworthy and reliable. He gave frank evidence, and I do not consider he attempted to embellish his answers.
64The plaintiff ought to have disclosed his lower back injury in his most recent affidavit. However, there is nothing to suggest that his failure to do so was deliberate. I accept the evidence he gave in cross-examination, that his back pain is now improved. However, I do not accept his evidence that his lower back condition did not contribute to him resuming Tramadol medication. Such medication was introduced after the plaintiff had suffered his lower back injury, and the medical records indicate that his lower back pain was an associated factor.
65The reference in Mr Miller’s report, to the plaintiff being limited in the distance that he can walk, was not put to the plaintiff. In her closing submissions, Ms Manova did not seek to rely upon this as impacting upon the plaintiff’s credibility. She submitted that it was a basis for me to disregard Mr Miller’s opinion.
66The plaintiff has a strong work ethic, and despite his ongoing neck pain, he has continued to work full-time. Ms Bailey described him as a “go-getter”[80] in that he has re-invented his career in a way consistent with his neck pain. She also said the plaintiff’s attempts at long distance running and body boarding, despite both activities causing him increased neck pain, were indicative of the plaintiff’s desire to get on with things. Therefore, save for my reservation regarding the need for the reintroduction of Tramadol medication, I have no hesitation in accepting the plaintiff’s evidence.
[80]T110, L25-L30
Permanent
67In order to satisfy the definition of serious injury, the plaintiff must prove that the injury and its consequences are both serious and permanent. The authorities have defined the latter to mean “likely to last for the foreseeable future”.[81]
[81]Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at [34]
68I am satisfied that the plaintiff’s neck injury and the consequences which flow from it are permanent. Only Mr Dooley raised the possibility of surgical treatment, as all other surgeons stated that it was best treated conservatively.
Causation
69 The defendant contested the case on the basis that the aggravation of the plaintiff’s cervical spine is no longer work-related. It relied primarily upon the medical opinion of Mr Siu, as well as the opinion of Associate Professor Davis. Further, it was submitted that the opinions of the other medical-legal doctors should be disregarded as they did not have the benefit of the report of Associate Professor Davis dated 8 August 2012.
70 The plaintiff sought to rely upon an Ansett v Taylor[82] admission, in that the insurer had paid a permanent impairment claim to the plaintiff and also continued to accept liability for the plaintiff’s medical and like expenses.
[82][2006] VSCA 171
71 It was noted in Ansett v Taylor that acceptance of such a statutory benefit claim should ordinarily be regarded as a very significant admission, but not one that is conclusive, as a defendant in a particular case might be able to satisfactorily explain its conduct.[83]
[83]Ibid at [40]
72 In this case, no evidence was tendered by the defendant to explain why it should not be bound by the prior acceptance of the plaintiff’s lump-sum claim, and the ongoing payment of medical and like expenses. Ms Manova sought to explain such acceptances on the basis that the report of Associate Professor Davis had only been discovered in subpoenaed records provided in this case, at some stage during 2016. However, I note that Mr Siu first disputed the causal relationship with the plaintiff’s employment over 12 months ago, and that no action was taken by the defendant’s WorkCover insurer to terminate the plaintiff’s medical and like expenses. Further, the defendant has recently obtained a report from Mr Dooley, who also considered the plaintiff’s condition to be work-related. In such circumstances, I am not satisfied that the defendant has satisfactorily explained why it should not be bound by the Ansett v Taylor admission.
73 However, even if I were to be satisfied that the defendant’s explanation was adequate enough to rebut the significance of the admission, then the overwhelming medical evidence in this case, supports me in accepting that the plaintiff’s condition continues to be work-related.
74 I do not consider that Associate Professor Davis expressed an opinion on the aggravation and believe that, as the treating practitioner, he was simply commenting on whether work had caused the underlying degenerative disease.
75 Mr Siu, as an experienced medico-legal consultant, understands the issues associated with causation in work injury cases, and he provided an opinion that work is no longer contributing to the aggravation. However, in circumstances in which I accept that the plaintiff has suffered ongoing neck pain since July 2008, and in which there has been no cessation in his symptoms, I do not consider Mr Siu to have adequately explained when or how the work-related aggravation ceased. I prefer the opinions of Mr Miller, Mr Scott, Mr Brownbill, Mr Shannon, Mr Buzzard and Mr Dooley, all of whom accept that the plaintiff’s condition relates to his employment with the defendant.
Aggravation
76 Having accepted that the plaintiff’s injury is an aggravation of the pre-existing degenerative condition in his cervical spine, it is now necessary for me to compare the plaintiff’s pre-existing condition, prior to the onset of his employment with the defendant, with the aggravated state. I must consider only the consequences arising from the aggravation, in accordance with the principles enunciated in Petkovski v Galletti.[84]
[84][1994] 1 VR 436
77 There is no evidence that the plaintiff suffered any pain in his neck prior to his employment with the defendant. For the reasons detailed above, I am satisfied that the aggravation is still work-related. Therefore, in considering this application, I can consider the totality of the plaintiff’s neck pain.
Disentanglement from the plaintiff’s lower back injury
78 The plaintiff has suffered from lower back pain since the middle of 2016, which was sufficiently bad for him to be referred to a neurosurgeon, and for fusion surgery to be recommended.
79 In considering the plaintiff’s application for a serious injury in respect of his cervical spine, I must disregard any consequences arising from his lower back injury.[85] The onus is on the plaintiff to disentangle the consequences of his neck injury from the consequences of his lower back injury.
[85]Peak Engineering & Anor v McKenzie [2014] VSCA 67; Poholke v Goldacres Trading [2016] VSCA 232
80 In the case of Acir v Frosster,[86] Forrest J considered a serious injury application under s134AB of the Act, for a plaintiff who was gravely ill as a result of end stage cirrhosis. The plaintiff sought to claim damages for a back injury he suffered during the course of his employment. Subsequent to suffering that back injury, the plaintiff developed a right shoulder injury, as well as a chronic liver condition, for which he was placed on a waiting list for a liver transplant. In assessing the plaintiff’s claim, Forrest J accepted that, irrespective of the plaintiff’s shoulder injury and liver condition, the plaintiff’s back injury had a significant effect on the plaintiff’s lifestyle and work capacity. In assessing the plaintiff’s claim for loss of earning capacity under s134AB(38)(e) and (f), his Honour disregarded the incapacity caused by the liver condition. He noted that the intervening medical condition would be relevant in a damages claim, but considered that it must be disregarded in assessing the serious injury application. By way of example, Forrest J referred to a person being hit by a bus and placed in a vegetative state, one day prior to the three year post-injury period. He stated that, failure to then let such a person claim for loss of earning capacity may lead to capricious results.[87]
[86][2009] VSC 454 at [65]
[87]Ibid at [177]
81 This reasoning was subsequently approved by the Court of Appeal in Herald and Weekly Times v Jessop,[88] in which it was noted that s134AB(38) was intended to be a gateway, for which the plaintiff must satisfy the specific requirements, rather than any common law requirements.[89]
[88][2014] VSCA 292
[89]Ibid at [37]
82 Although Acir and Jessop both considered serious injury applications in respect of loss of earning capacity, I consider the principles enunciated by the Court of Appeal in both cases to be relevant to a claim relating only to pain and suffering. Further, I consider such principles to be consistent with the task required of me, as identified by the Court of Appeal in Peak Engineering.
83 I am satisfied that the plaintiff has suffered ongoing neck pain since mid-2008. Some eight years had passed before he suffered the unrelated lower back pain. As such, the consequences of his neck pain were well entrenched and can be easily identified.
84 The only apparent overlap of consequences between the plaintiff’s neck injury and his lower back injury, is the current prescription of Tramadol. As I cannot be satisfied that the Tramadol was prescribed for the neck pain, I will disregard this in considering whether the consequences of the neck injury for the plaintiff are serious.
Are the consequences of the aggravation serious?
85 I must now consider whether the consequences for the plaintiff are serious.
86 In Haden Engineering Pty Ltd v McKinnon,[90] Maxwell P said:
[90](2010) 31 VR 1 at [9]-[12]
“In its accepted interpretation, the ‘pain and suffering consequence’ of an injury encompasses both the plaintiff’s experience of pain as such and the disabling effect of the pain on the plaintiff’s physical capabilities (including capacity for work) and enjoyment of life. (I will refer to the second element as ‘the disabling effect’ of the pain.)
As to the experience of pain as such, the court must assess the intensity of the pain which the plaintiff experiences. For this purpose, pain intensity is often classified on the scale mild/moderate/severe. Unless the pain is constant the Court will need also to assess the frequency and duration of the pain episodes.
The evidentiary basis of the pain assessment will ordinarily compromise the following:
(a)what the plaintiff says about the pain (both in court and to doctors);
(b)what the plaintiff does about the pain (eg medication, rest, seeking medical treatment);
(c)what the doctors say about the extent and intensity of the plaintiff’s pain; and
(d)what the objective evidence shows about the disabling effect of the pain.
As to (a) the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility. The court will make its own assessment of the plaintiff’s credibility if he/she gives evidence, and will also take into account views expressed by examining doctors about the reliability of the plaintiff’s accounts of pain.”
87 As stated previously, I consider the plaintiff to be creditworthy and reliable, and I have no hesitation in accepting his evidence. His credibility bears significantly on my assessment of his evidence regarding his pain experience.
88 In his most recent affidavit, the plaintiff said that his neck pain is constant and that it varies in intensity. I accept that he suffers more frequent flare-ups of pain and that when he does, the flare-up lasts for a longer period of time.
89 I accept that the plaintiff takes Lyrica on a daily basis, as well as Panadol most days, as a consequence of his ongoing neck pain. As has been recognised by the Court of Appeal in previous cases:
“…the endurance of permanent daily pain requiring frequent medication must, according to ordinary human experience, raise a real prospect of a ‘very considerable’ consequence.”[91]
[91]Kelso v Tatiara Meat Co Pty Ltd [2007] VSCA 267 at [199]. See also ACN 005 565 926 Pty Ltd v Snibson [2012] VSCA 31
90 For the reasons stated above, I shall not have regard to the plaintiff’s current use of Tramadol, as I am not satisfied that it has been provided for his neck injury.
91 The plaintiff has consistently complained to Dr Trivedy about his ongoing neck pain, and Dr Trivedy accepts that the plaintiff suffers such ongoing pain. Further, the numerous medico-legal doctors who have examined the plaintiff over time have also accepted his complaints of pain.
92 In considering the “disabling effects of pain”, I am also satisfied that the plaintiff suffers the following consequences as a result of his neck injury:
– he is no longer able to body board, a leisure activity he previously enjoyed;
– he is limited in the physical activities he can undertake with his children;
– his intimate relations with his wife have reduced;
– he is slower in his ability to perform household and gardening tasks, with consequential increased pain when he does certain activities;
– his medication has impacted upon his concentration and engagement both at home and at work.
93 Collectively, I consider these consequences to be more than significant, and at least very considerable for the plaintiff.
Conclusion
94 Accepting the consequences identified above, when comparing the plaintiff’s case to the range of other possible impairments, I am satisfied that the consequences of his cervical spine impairment are at least very considerable.
95 The plaintiff’s application for leave to commence a claim for common law damages succeeds. I shall make the consequent orders.
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