Benham v Fire Rescue Victoria
[2024] VCC 1997
•13 December 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-24-02009
| MICHAEL WILLIAM BENHAM | Plaintiff |
| v | |
| FIRE RESCUE VICTORIA | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 October 2024 | |
DATE OF JUDGMENT: | 13 December 2024 | |
CASE MAY BE CITED AS: | Benham v Fire Rescue Victoria | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1997 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury application – impairment of the spine – pain and suffering – loss of earning capacity
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act2013, s335(2)(d)
Cases Cited:Barwon Spinners & Ors v Podolak (2005) 14 VR 622; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Kelso v Tatiara Meat Company Pty Ltd (2007) 17 VR 592; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181; Peak Engineering & Anor v McKenzie [2014] VSCA 67; Ellis Management Services Pty Ltd v Taylor (2013) VSCA 326
Judgment:Leave granted to bring proceedings for damages for pain and suffering and loss of earning capacity.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J B Richards KC with Mr C Farinaccio | Bowman Knox |
| For the Defendant | Mr B R McKenzie | Russell Kennedy |
HER HONOUR:
1This is an application for leave to bring proceedings pursuant to s335(2)(d) of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (“the Act”) in relation to an injury by the plaintiff suffered during the course of his employment with the defendant, Fire Rescue Victoria (“FRV”) between 2016 and 2022 (“the period of employment”) and in particular on 24 October 2016 (“the said date”).
2The plaintiff seeks leave to bring proceedings for damages in relation to both pain and suffering and loss of earning capacity.
3The body function said to be impaired is the spine.
4The plaintiff bears an overall burden of proof upon the balance of probabilities.
5By s325(2)(b) of the Act, the impairment must have consequences in relation to pain and suffering which:
“… when judged by comparison with other cases in the range of possible impairments, or losses of a body function or disfigurement, as the case may be, fairly described [as at the date of the hearing] as being more than significant or marked, and as being at least very considerable.”
6I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.
7Subsection s325(2)(h) of the Act provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
8In this application, where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of 40 per cent or more, both at the date of hearing and permanently thereafter.
9Subsections (2)(e) and (f) recite the formula by which loss of earning capacity is to be measured.
10Subsection (2)(g) requires questions of rehabilitation and retraining be considered in determining whether the 40 per cent loss has been established.
11I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[1] and Haden Engineering Pty Ltd v McKinnon[2] in reaching my conclusions.
[1] (2005) 14 VR 622
[2] (2010) 31 VR 1 (“Haden Engineering”)
12The plaintiff relied on two affidavits, sworn 18 October 2023 and 30 September 2024, and was cross-examined. He also relied on an affidavit of his wife, Rebecca Benham, sworn 30 September 2024. Also in evidence were medical reports and other material. I have read all the tendered material.
13The defendant’s focus was the pecuniary loss application, although pain and suffering was not conceded.[3]
[3]Transcript (“T”) 5
Plaintiff’s evidence
14The plaintiff is currently 50, having been born in January 1974. He is married with two children, aged three and five.
15He started work as a firefighter with the Metropolitan Fire and Emergency Services Board in around July 2000. In 2005, he was promoted to leading firefighter. From July to October 2019, he undertook a course to become a station officer.
16His work as a firefighter involved responding urgently to residential, commercial, and industrial fires. The safety of people and property were at stake. Every time he was called to go to a fire, he needed to carry the breathing apparatus and personal protective clothing, which weighed at least 20 to 25kgs, not including the other equipment they were required to carry depending on the type of response.
17His work duties as a firefighter required a lot of physical activity, including:
(a) wearing and carrying full body personal protective equipment (PPE), including while sitting or standing for prolonged periods during the course of regular long shifts of between 10 and 14 hours;
(b) wearing and carrying full body PPE while repetitively bending, twisting, crouching, climbing stairs on and off the fire truck, reaching, pushing, pulling, and lifting;
(c) rapidly boarding and alighting from the fire trucks; and
(d) repetitively pushing, pulling, lifting, carrying and dragging hoses.
18His work duties as a leading firefighter also involved checking appliances and running the pumps and hose lines down on the ground by hand. A lot of force was required to roll out the hose and roll it up again at ground level.
19As the station officer, he attended fires, but he was not always required to put on the breathing apparatus. He spent a lot of time working on the computer without a sit/stand desk, sitting for long periods of time. His work involving doing administrative duties such as answering phone calls and responding to fire calls, aggravated his low back and neck injuries.
Medical history
20In around 2007, the plaintiff experienced some low back pain whilst packing a 90-millimetre after attending a fire. This was a minor strain, and he recovered well.
21Before injuring his back, hips, and neck as a result of his work duties in the said period, he lodged WorkCover claims including for the following instances:
(a) In August 2010, he was training in the gym at the fire station when he felt pain in his back, worse on the left side. As a result of this incident, he developed pain in both of his hips and lumbar spine. He was restricted to light duties at this time whilst seeking osteopathic treatment. In July 2011, he underwent bilateral arthroscopic hip surgeries. He returned to work on light duties in around September 2011 and was cleared for full duties in around July 2012. At this time, he was also able to undertake his activities of daily living and social and recreational activities without pain or restriction. By mid-2012, he was predominantly pain free and had made a good recovery from his hip surgeries.
(b) In around March 2014, he was climbing out of a fire truck when he overextended his arm and felt pain in his right elbow, forearm and bicep. He also strained his neck. He was able to continue working his normal duties at work and does not recall needing any time off. His pain and symptoms improved over six to eight months.
(c) In around September 2014, he also had some discomfort in the lower part of his neck on the right side, and his right arm when doing a bench press. He was referred for physiotherapy and osteopathic treatment that focused on the pinched nerve in his neck, especially on the right side. He also developed some weakness in his right arm and occasional pins and needles in his hands. His neck and right arm symptoms improved in late 2014.
(d) In about April 2016, he suffered from some pain and swelling in his right foot and right ankle while exercising at work. The pain and swelling completely resolved within a week. While he still has some tightness and right ankle pain from time to time, this has been addressed through physiotherapy and osteopathic treatments. From time to time, between 2016 and 2020, he has occasionally had some aches in his right foot/ankle, but this has not caused any ongoing issues or prevented him from undertaking his full pre-injury work duties.
(e) In October 2016, he suffered an aggravation of his neck pain when climbing out from a fire truck. He also injured his right shoulder. He lodged a WorkCover claim. His neck injury was accepted; however, the right shoulder injury claim was rejected. He was off work for a few months between December 2016 and March 2017 because of his back and neck pain, and referred symptoms into his legs and right arm.
22During 2016-2017 and again in 2018-2019, he had five or six sessions of relationship counselling.
The incident
23On the said date, he was lifting a hose into a truck while squatting when he suffered pain in his left hip and buttock. He developed pins and needles in his left leg, including his calf and foot (“the incident”).
24He has suffered from pain and pins and needles in his right foot from time to time since the incident. Prior thereto, he did not suffer from tingling, pins and needles in his left leg/foot or his right foot, just right foot pain.
25After the incident, he was prescribed anti-inflammatories and referred for osteopathic treatment. His back pain was constant in the following two to three months. He was then working full-time hours in restricted duties which required lots of sitting. He was referred for scans of his low back and was deemed not able to continue working at all whilst in this much pain.
Subsequent treatment
26In November 2016, the plaintiff was referred for physiotherapy and osteopathic treatment for aggravation of his neck and back pain.
27In December 2016, he had a lumbar MRI scan. He was then referred for specialist opinion as his pain and symptoms were not improving with conservative treatment.
28During 2017, he was referred to orthopaedic surgeon, Mr Greg Malham. The plaintiff previously had great difficulty walking any significant distance, but this had been improving. Mr Malham did not recommend surgery, but suggested that the plaintiff might benefit from an epidural injection.
29The plaintiff continued to have fluctuating back pain, with some good days and some bad days during 2017. His back pain improved during 2017-18. He made slow and consistent progress with osteopathy, physiotherapy, and exercise physiology treatment.
30In around April 2020, he was referred for osteopathic treatment of his back, neck and hips with Dr Ben Robins, after experiencing worsening low back pain. Treatment was also focussed on his left sacroiliac joint.
31In July 2020, he was referred for a lumbar MRI (which showed broad-based disc levels that were also present at the time of his previous MRI scan, as well a narrowing at the spine on both sides, at the L4-5 and L5-S1 levels).
32In around August 2020, the plaintiff was referred to neurosurgeon, Dr Craig Timms, who suggested that he may need a cortisone injection. Dr Timms has suggested that he may require back fusion surgery at two levels or more in the future.
33In that month, he was also referred to urologist, Dr Darren Katz, for treatment of sexual and erectile dysfunction that had developed on the background of his worsening back pain.
34In late 2020, he was referred to pain specialist Dr Dan Bates. Dr Bates has given him various injections, including a nerve block at multiple levels of the lumbar spine and the sacroiliac joint.
35The plaintiff underwent a lumbar branch block injection in December 2020, which helped to reduce his pain. Dr Bates then recommended that he have a radiofrequency neurotomy for his low back. He last had a nerve block with Dr Bates in June 2022.
36In March 2021, he had a medial branch block injection into the left L4 medial branch of his lumbar spine and sacroiliac joint injection. During that year, he started using a sacroiliac joint belt, which helped at times to reduce some pain.
37In October and November 2021, he underwent a CT-guided pulsed radiofrequency neurotomy at the L5 and S1 levels, as well as an injection into his sacroiliac joint.
38In May 2022, he was referred for psychological treatment with Ms Kylie Clark because of the chronic back and hips pain.
39In June 2022, he underwent a left radiofrequency neurotomy at L4-S3, as well as an injection into the sacroiliac joint and epidural injection.
40In December 2022, he was referred to urologist, Dr Sarah Azer, who prescribed Cialis and Caverject injections to treat sexual dysfunction arising from his low back injury.
41In early 2023, he consulted neurosurgeon, Dr Myron Rogers, who did not recommend that he proceed with spinal fusion surgery at that stage.
42In around May 2023, he was referred for acupuncture treatment.
43On further review in around December 2023, Dr Bates did not recommend any further injections or other invasive treatment.
Work post-incident
44After the incident, the plaintiff kept working for a couple of months. From December 2016 to March 2017, he was off work completely.
45He thought he then returned on a restricted duties role, initially eight to twelve hours a week. It took about eight or nine months to build up to full-time hours. He was working within the Health and Fitness Department, which was mostly desk based. He had a stand-up desk so he stood most of the day. He was coordinating some of the fitness leaders, looking after them and working on some special projects. He wrote a paper for a hydration project.[4]
[4]T27
46While doing these light duties as a health and fitness advisor, he was also doing rehabilitation work in the gym, increasing his weightlifting and dead lifting capacity. By early 2019, he was lifting weights of 120kgs once per week.
47In February 2019, he was cleared for a full return to work as he was not having any issues with his back or glutes.
48Later in 2019, he did the training to be a station officer because he thought that job would be easier on his back, commencing 16 weeks training in July/August 2019. To be eligible for the course, you had to be an operational fire fighter. After completing the course, he went onto shift as station officer in Windsor. The role involved a lot more station duties in terms of computer work, managing time sheets, organising visits, “that sort of thing”.[5]
[5]T28
49It was true that he already had problems with his back, and that his level of activities outside of work were significantly affected from October 2016.[6] He was cleared to return to full duties before starting the training program. He thought being a station officer would be easier for his body in the long run, because there was less “physical responsibility”.[7]
[6]T26
[7]T28
50Having been on shift for about nine months, his back started tightening up. Then he had a night shift, which was the last night he did on shift. That night they had eight or nine calls after 11pm, which is when they were allowed to sleep, so he got out of bed eight or nine times, pulling on the boots. During that night, his back pain got stronger and stronger, and he knew that was probably going to be his last shift. By the morning he was in excruciating pain, just from having to bend down and pull the boots on.[8]
[8]T29
51In July 2020, he had to stop work because of his back pain, which also caused pain in his left leg and hips.
52Having had four months off, he started working from home for the Health and Fitness Unit. He commenced working about eight hours a week and built up to fourteen hours, which he worked until early 2022.
53Working 14 hours per week in 2022, he was still in pain and struggling with concentration. He went into work two days, because he was on the hydration working party; one day in Spring Street and one in Burnley, probably four hours in total with commuting as well. On the second day in a row and driving back home, he was in excruciating pain. He already had an appointment with his GP, and he just said to him: “Look, I can’t continue doing this”.[9]
[9]T29
54He stopped working altogether in around March 2022, mainly because of his back and neck pain.
55He recalled seeing Dr Timothy Entwisle, psychiatrist, in June 2022. He believed he told him he was considering a new role at the exercise science unit. It was correct he told him he was unsure whether he could manage a full-time role. As much as he would have liked to have done that job, and he would have been in charge of that department, he just could not see himself being able to do it, even with working from home arrangements. He thought it would just be too painful.[10]
[10]T30
56In December 2023, he found work delivering some fire safety training with Executive Risk Solutions (“ERS”). He thought that he might be able to handle being on his feet, moving around when needed while delivering the training. He tried working two days a week, for seven hours each day, however he had great difficulty having to sit or stand in relatively static conditions for extended periods. The work caused an increase in the severity of his low back pain and the symptoms in his left foot. He had to cease working after about a week.
Firefighting career
57The plaintiff loved his firefighting career. His father was a commander with the Fire Brigade. Growing up, working as a firefighter was his dream career. He has worked most of his working life in this role. Prior to getting married and having kids, he was a firefighter first and foremost. He has lived his career and has worked tirelessly towards becoming the best firefighter that he could. He trained for it and kept himself in great physical condition. He was immensely proud to wear his firefighting uniform.
58He is very disappointed that his career has been cut short. He feels like a part of him has been lost now, and he is bitterly disappointed, saddened, and frustrated that his firefighting career has been cut short.
59On 8 July 2024, he resigned from FRV on medical grounds. He is now in receipt of a permanent pension through ESSS.
60He is not sure what work he could do on a reliable and consistent basis, day after day. He had tried returning to work in lighter duties with the defendant performing administrative tasks from home. However, he struggled with having to sit or stand in a static position for extended periods even when working with a sit-stand desk when performing light duties with the defendant. When working restricted duties with the defendant while employed as a Station Officer in 2022, he was also limited to working around 14 hours a week at the time that he ceased work in around mid-2022 because of his low back injury and left leg pain.
61He believes that he would still struggle considerably working in an office environment. He has previously tried to use a sit-stand desk when he returned to work with the defendant. He struggles most with sitting or standing in the one spot for prolonged periods day after day. When his back pain becomes more severe or his left foot pain increases – especially with sitting or standing in the same position for extended periods – he often needs to rest or lie flat on his back with his feet up on the couch to try and relieve the pain. Alternatively, he needs to rest or take a break, along with some medication for pain relief.
62He tried very hard to rehabilitate himself, but is disappointed that the most recent aggravation of his back and left hip pain has prevented him from pursuing the job and career that he loves.
63He “had tried to go back to work”, when it was suggested he has a capacity to go back to work if he chose to. He had worked for ERS two separate days doing some fire safety training for an external company, seven-hour days a week apart and he was very sore after those days. He felt like that combination of work – of sitting, standing, walking around, presenting – would be a pretty good mix for him and probably the best he could come up with, and it was offered to him to try.[11]
[11]T26
64Both days training days with ERS resulted in him being quite sore.[12] ERS only offered work on a daily basis, which he just could not do without exacerbating his pain levels.[13] He experienced significant pain driving home from work, with the drive being probably only about 15 minutes from home on both occasions.[14]
[12]T26
[13]T38
[14]T45
65It was correct the work he did with ERS was a relatively short time after he went on caravanning trips to Lake Hume and Fraser Island. He would not say that he was capable of working more than two seven-hour days with ERS because he was able to make those camping trips. On those holidays, he was in pain all the time. He takes his children on holidays to provide good experiences for them – they are the ones having the good time. He will just tolerate the pain so he can give them some experiences.[15]
[15]T38
66He disagreed that he did not give working with ERS a serious attempt because of these legal proceedings. ERS wanted him to pretty much work fulltime, and there was absolutely no way he could do that without exacerbating his pain.[16]
[16]T39
67About three or four months ago, he had applied for a parttime administrative role with Basketball Australia. He thought it was a role he could probably adapt to. There was no real detail around what this parttime role entailed but it did have flexible working arrangements. He did not know the salary. He was not successful in getting an interview.[17]
[17]T34
68If he had been given an interview, he would have gone and tried to ascertain what the actual role involved, how many hours were required, the remuneration, and what travel would be required.[18] If he had been offered the job, he would have attempted it depending on what they wanted from him. He would not have taken the job if he could not do it, because he did not want to be unreliable.[19]
[18]T34-35
[19]T35
69He had looked at other roles, but he really struggles to see the sort of role he could do without putting himself in excess pain and be reliable to keep showing up.[20] He was not sure he could work on a reliable basis, more than say 14 to 20 hours per week.[21]
[20]T35
[21]T37
70Even working 14 hours a week, he was not overly productive. He thought he was just being hopeful that he could do something better. He thought if he could get a role with Basketball Australia “that would give [his] kids more of something to admire [him] by”, being the one who stays home all the time while his wife goes to work.[22]
[22]T37
71He told Dr Yong in August this year that he was currently looking for work in a parttime administrative role. He believed that was the time he applied for the Basketball Australia role.[23]
[23]T36
72Aside from the Basketball Australia role, he had not made any other official applications. He had browsed some apps “and things.” He had considered whether or not he could work at Bunnings, but did not know whether he could do so for more than a few hours a few days a week, or whether he would be reliable or not.[24]
[24]T37
73His computer skills are “okay, not great”. He had done some Certificate IV Training and Assessment modules, but did not know whether they were still valid. He was not required to complete the Certificate IV as part of his station officer training.[25]
[25]T39
74He agreed he did a vocational assessment back in 2016 or 2017, which may have identified potential retraining such as completing a Certificate IV, but there was no retraining offered. At that point, he wanted to return to FRV or MFB, not to retrained.[26]
[26]T40
75He agreed that if he could find a role that he could be reliable at, he would work, but he really did not think that he could do a job reliably and have an employer expect him to turn up. Given the way his back looks, he thought he would be a major risk to any employer.[27] He thought if he had to work and sit in an office doing an administrative role, he would really struggle. Even alternating between sitting and standing caused him trouble.[28]
[27]T41
[28]T42
76He disagreed his capacity was greater than 14 hours a week. He was not doing those hours pain free – he was doing them in a lot of pain, which is why he stopped work. His pain increased significantly, and he decided that it was not beneficial to his health to return to work for more than 14 hours a week.[29]
[29]T42
77He agreed he told Dr Entwisle in June 2022 that he was considering applying for a temporary pension for twelve months to see if he could manage being a stay-at-home dad, and if not, would consider retiring from FRV. He would have liked to have done the role in the Exercise Science Unit, but there was no way he could have done the fulltime hours to maintain it.[30]
[30]T31
Pension
78He was not sure about the timing, but he was at 130 weeks of weekly payments, and because he was working 14 hours per week they would not “make the gap up anymore”.[31] He applied for the pension, and by that time he was back to zero hours anyway, and he went onto a temporary pension. The temporary pension allowed him more time to recover from his physical injuries, which gave him more options at the end. Theoretically, at the end of the temporary twelve-month pension, if you have made significant improvements, you can actually go back to a full-time role within the Brigade, but he was not able to do so, because of ongoing pain.[32]
[31]T31-32
[32]T32
79He was certified permanently on the pension from July 8 this year.[33] His pension works out to about $1,628 per week, although he thought he had to pay some back, because he elected to pay super whilst on a temporary pension. He thought he gets around $1,550 a week.[34] The pension works out about 65 per cent of his previous gross income, and he is allowed to earn back 35 per cent before they actually restrict any part of his pension. So he could have actually gone back to work and effectively made up the gap.[35]
[33]T36
[34]T33
[35]T33-34
80He can “top up” the $88,000 per annum he gets through his pension up to around $140,000 to $150,000. He can earn up to that amount before the pension would be scaled back, so it would actually be to his benefit to be able to work.[36] He thought he could earn up to $60,000 in gross income before there would be any sort of effect on his pension.[37] His pension is not a disincentive for him to return to work.[38]
[36]T43
[37]T46
[38]T43-44
81If he did move into gainful (full-time) employment in future, “they would take the pension off [him]”. He thought instead of getting a pension they would give him back his superannuation. He thought if he went off his pension, then he could not get back on it.[39]
[39]T36
82Continuing to work with the defendant would have “been fantastic,” because some of his best mates were there and he thought great things were going to happen, but as much as he wanted to do the role, it was just impractical. He had to make the choice that he had to put himself and his body first, as opposed to trying to work.[40]
Consequences
[40]T47
Pain
83The plaintiff continues to suffer ongoing pain in his low back and hips, with referred pain, pins and needles, and tingling into his left buttock and left leg, particularly his left foot.[41]
[41]Affidavit sworn 30 September 2024
84Most days, he is in considerable pain. There are three-to-four days when he is not “very beneficial” at home and spends a lot of time resting and trying to do his rehabilitation.[42] When he works or stands for any length of time, his pain increases constantly which starts to affect sleep, mood, and his ability to concentrate.[43]
[42]T44
[43]T45
85His level of back pain sitting and standing in the witness box was about five or six out of ten, with stiffening, and he had pins and needles in his left foot.[44]
[44]T44
86His back pain and left leg symptoms continue to be aggravated by activities such as sitting, bending, twisting and repetitive lifting as well as walking He continues to experience left hip pain which flares with these activities and sudden movements. His back and left hip pain is worse in colder weather. In the past year, these activities have more specifically aggravated the pain in his left foot rather than his hip.
87He continues to have difficulty siting for prolonged periods in the same position. When sitting in an office chair or dining chair, he is limited to sitting for about 10 to 15 minutes before his back pain increases, and can also cause a burning sensation in his left hip. If he sits for longer, the pins and needles can also become a burning pain in his left foot. His sitting tolerance is greater in a reclined position.
88He continues to avoid aggravating activities but when his back pain is aggravated by prolonged postures or increased activity, he generally tries to lie on the floor with his legs up on the couch to try to reduce his pain. He might also arrange an extra osteopathic visit or take more medication.
89He has not had any flare ups of his right ankle or foot pain of late. Those issues have settled down since the end of last year.
Current treatment
90He continues to see his GP, Dr Fayman, on average monthly. He sees his osteopath once every three weeks for treatment of his back and left hip and also at times, his neck. He sees Dr Bourke, acupuncturist about once every three weeks.
91He currently takes Celebrex and Duloxetine to treat his back and left hip injuries. He takes two tablets to begin the day after waking up. If his pain flares up and gets worse during the day with activity, he will take two extra tablets of both. Sometimes he might take these two or three days in a row. He also usually takes two Panadol tablets before going to bed to help with sleep issues caused by his back and left hip pain. He has also started a trial of Panadol Osteo, two at night and two in the morning, because of his increasing lower back pain and stiffness.
92He did seek to attend a pain management course suggested by an IME, but they failed to respond to the email application. Another course he priced locally had large out of pocket expenses beyond the scheduled rebates. He has spoken with Dr Bates about a course offered by Metro Pain Group, but Dr Bates felt that the plaintiff would not gain a lot of insight from it as he has been proactive in his rehabilitation, and his compliance with rehab programs had given him the best chance of achieving maximum function at his level of disability.
Sleep
93He continues to have difficulties with sleep because of back pain. He tosses and turns because he finds it difficult to find a comfortable position. He wakes due to back pain at least two to three times per night. He is often awake for several hours and he struggles to get back to sleep.
94As a result, he often wakes feeling fatigued in the morning and needs to nap during the day.
Sport and activities[45]
[45]Described in detail in his first affidavit
95Prior to his workplace injury in 2016, the plaintiff was extremely physically fit, and an active cyclist who was passionate about competitive and recreational cycling. His work injuries have prevented him from competing in sports including cycling at the World Police & Fire games as well as participating in and training in sports for leisure and physical fitness such as water skiing, wakeboarding, surfing, swimming, speedball, boxing, running and jogging. Participating in powerlifting, weightlifting,[46] and going on long bike rides has been significantly restricted by his low back and hip injuries.
[46]He was able to deadlift around 250 kgs, squat 250 kgs, and bench press 150 kgs; First affidavit
Driving
96The plaintiff sometimes struggles sitting in the car, especially on longer drives. He avoids sitting in his wife’s car whenever possible.
97He has had to purchase a new SUV since injuring his low back, so that he is able to sit in a more supportive and upright position. This vehicle has increased his sitting tolerance when driving for extended periods. He uses a seat pad in his car to help minimise any pain in his back and hips. However, his pain increases nonetheless after about half an hour to an hour of driving and sitting in the same position. He also gets left foot pain after driving for prolonged periods.
98He puts up with his back and left leg pain as much as possible to try and limit the impact of his injuries on family life for his wife and two young sons.
99Before the injury, he dreamt of taking his kids into the great outdoors and enjoying water-based activities with them. He has tried to take them out camping and four-wheel driving on a few occasions, but a trip of two to three days can aggravate pain in his back, left leg and left hip for days. When camping, he struggles with getting in and out of the swag, moving to and from ground level and generally setting up and carrying the equipment around.[47]
[47]First affidavit sworn on 18 October 2023
100He and his wife bought a caravan, which involves a lot of driving, and the physical activities involved with the setting up and packing down. Driving and setting up the caravan increases his back, left leg, and left hip pain. However, he deals with the pain to be able to spend time with his family.
101Caravanning with his family is more cost effective and economical than flying a family of four. When driving on family trips, he tries to take rest breaks every 60 to 90 minutes. Some days when his back pain is worse, he is limited to around 45 minutes of driving before an increase in back pain.
102Cross examination focussed on the plaintiff’s recent camping activities.
103He bought the caravan within twelve months of ceasing work with the defendant. The first trip was in January 2023, about an hour from Melbourne where they spent perhaps two nights.[48] He did the driving, and set up and packed down the caravan with his wife. He was on the temporary pension at the time.[49]
[48]T32
[49]T33
104It was incorrect that his ability to go caravaning to locations like Fraser Island indicates that he has a greater capacity than he led the doctors to believe. Driving his car, a large vehicle, is better, because he has quite a lounge/reclining position and a cushion that he sits on. It's quite comfortable to sit in and drive, so that's why he gets longer driving times in his car, as opposed to any other vehicle.[50] It is like sitting on a recliner lounge, which is where he spends a lot of time when at home.[51]
[50]T17-18
[51]T43
105Although he agreed he was able to set up and pack up the caravan, “the caravan’s not that difficult to set up, really. They have a hydraulic jockey wheel – you just pump the handle and it lifts it all for you.” He generally puts up and puts down the awning.[52]
[52]T18
106When asked whether he could recall telling doctors about his camping and caravanning trips, he answered, “I sort of answered whatever questions they asked me.”[53] He agreed he did not tell Dr Awad about trips to Lake Hume or Fraser Island. Dr Awad did not ask him directly.[54] Dr Sullivan and Dr Yong would not have asked him about any trips.[55]
[53]T18
[54]T19
[55]T25
107The plaintiff confirmed he had been on three camping trips since March 2022 – two longer ones to South Australia and Queensland, and a weekend in Bright.[56] The South Australia trip was in February this year, to the Eyre Peninsula and return, and was a four-week holiday. The family stayed at different beachside and caravan parks. They took the kids to the beach – he just watched them play.[57]
[56]T20
[57]T20-21
108On another trip Queensland, they went as far as Hervey Bay and visited friends in Noosa. It took five days to get there and probably the same coming back. They had a couple of stops in New South Wales. They had four nights in Yamba and four in Port Macquarie. Activities were probably beach visits mostly, and a few short walks – he cannot do longer bush walks. They did not walk on the beach, but there was “a little bit” of uneven terrain. It took 10 or 15 minutes to walk to the waterfall.[58]
[58]T21
109He believed the trip to Bright was for three nights. He drove there. They took the kids to a music festival at one of the breweries, walked around the town, and went to the local playgrounds in town.[59]
[59]T22
110Travelling increases his pain. He does it for his family. He does not know how much time he has left before his spine “completely packs it in”.[60]
[60]T42
111In re-examination, he explained that when his back is troubling him on a camping trip, he will try to lie in the sand as long as he can comfortably, or he will just stand around watching. It is not a very enjoyable time. He can generally lie on the lounge or bed in the caravan and have a bit more respite.[61]
[61]T46
112A post on his social media account showed a photograph of a sunset from his trip to Lake Hume on 5 November 2023. He had travelled there in the caravan with his family and met his dad up there. The trip was only for the weekend – three nights.
113The plaintiff could not recall exactly how long this drive took, but usually he would take a stop every hour or hour-and-a-half to let the kids out of the car, take a break, and have a stretch. He did the majority of the driving, because he finds it more comfortable to drive.[62]
[62]T9
114A second post made to his social media account showed a photograph taken on the beach at Fraser Island on 28 September 2023. He did all the driving over ten days, including around the Island. He denied that the car got bogged on the sand.[63]
[63]T10
115Another photo showed his vehicle parked on the beach, and the plaintiff’s children playing in the sand. He denied playing in the sand with them: “I usually just stand around … it’s one of the unfortunate things of having this pain.”[64]
[64]T11
116The plaintiff updated his Facebook “cover photo” on 27 September 2023 to a picture of an airborne man wakeboarding with one hand on the rope. The plaintiff explained that he was just “putting up some neutral photos” and that the photo was of Brett Sanders, a waterskiing instructor who he admires as an athlete. It was not a photograph of the plaintiff – he wished he could, but he had never been able to do an inverted wake board trick in his life.[65]
[65]T12
117When asked if he had put up the photograph to “bait the defendant’s solicitors,” he explained he “sort of just wanted a neutral image to put up there that wasn’t [him]”. He was advised not to put any posts that might be misconstrued, so he just put up a post up that was a neutral image of someone doing a trick in wakeboarding.[66]
[66]T14
118The plaintiff also posted a photograph of his MRI scan to Facebook on 27 September, commenting on that post that he was “just baiting the dogs”. He “just felt that [he] just wanted to put something up there and if people wanted to see an image of [himself], that's the image they could see”.[67] He agreed that he had been told by his solicitors on 27 September that the defendant was aware of social media material regarding him going camping.[68]
[67]T13
[68]T12-13
119When it was suggested he had mentioned his camping activities in some detail in his most recent affidavit because of the social media material regarding his trip to Fraser Island, the plaintiff said he had never hidden from the fact that he goes on family holidays. If he drives for too many days in a row, his pain will increase a lot. That's why he tries to break things up as much as possible and takes his time, as he deposed.[69] There is always pain there, he just tries to do what he can for his family and take the kids on holidays.[70]
[69]T15-16
[70]T16-17
120It was not the case that he could sit for an hour-and-a-half when he wanted to – it depended more on the seating arrangement as opposed to the seating time. It was not correct that he had a greater capacity for work than he had indicated to doctors.[71]
[71]T17
Domestic activities – gardening and grocery shopping
121He tries to help his wife out with lighter jobs when gardening, grocery shopping and cleaning around the house. Most activities inside and outside the house cause him pain in his low back, left leg and/or hip. He avoids jobs that require repetitive bending or crouching, such as cleaning the bathrooms or the shower.
122He tries to help out with the grocery shopping wherever possible, but he finds that pushing the trolley, especially when it is full, can aggravate the pain in his back and hips.
123He receives assistance from WorkCover to help with the cleaning, particularly the heavier cleaning tasks around the house for around a couple of hours a fortnight. WorkCover has also provided lawn mowing services on a fortnightly basis over the spring and summer months, and a monthly basis over the winter months.
124In the garden, he avoids repetitive digging, heavy lifting, and pushing the wheelbarrow. He finds mowing the lawns for an extended period causes additional pain in both his back and left hip, especially when he needs to push with force. Being more active outside in the garden tends to trigger both his back and hip pain. He usually needs to take additional medications and rest for several days afterwards because of the increasing pain.
Family activities
125In the last year or two, he tried going to the Monster Trucks with his wife and young boys, but had to leave half way through because of the severe back pain after walking to the arena and sitting in the plastic chair at the stadium. This year, his wife went to the Monster Trucks with the boys without him. There have been many occasions when he has not accompanied his wife and children to family functions, the park, or the Monster Trucks because of his back and left leg pain.
126He is disappointed and upset that his ability to play footy or cricket with his kids is going to be significantly limited by the injuries to his back and left hip. While he may be able to do some light kick to kick with a footy with them, he will never be able to run with them, chase them, or ride bikes for any significant distance with them. He finds this terribly embarrassing and painful, and is saddened and upset that he will not be able to share these activities with his children.
127He struggled with standing and sitting at a wedding in the city he attended in 2023.
Sexual dysfunction and intimacy
128His relationship with his wife, particularly their sexual intimacy, has suffered. His erectile and sexual dysfunction worsens as his back pain worsens. This also affects his sexual desire and psychological wellbeing. It impacts on his sexual intimacy and relationship with his wife.
Psychological impact
129The ongoing chronic nature of his back and hip pain impacts his mood and mental health. He tends to be a lot more fatigued than he used to be before the injury. He is more tensed and depressed because of his pain. He sometimes gets frustrated with people around him, in a way that he did not use to before injuring his back and left hip in 2016.
Lay evidence – Rebecca Benham
130The plaintiff’s wife, Rebecca Benham, swore an affidavit on 30 September 2024. She has known him for over twelve years. They were married in 2018, and have two boys who are almost three and almost five years old.
131She confirmed the plaintiff’s evidence of his workplace injury and its effects on his lifestyle thereafter.
132Before the plaintiff injured his low back in 2016, he was a very physically active person. They led a very active lifestyle that underpinned their relationship and participated in a range of activities and sports together, including bike riding, hot yoga, rock climbing, water skiing, paddle boarding, surfing, and swimming.
133A lot of the high intensity sporting activities they used to love doing together are no longer a part of their lives. While they sometimes go for a short bike ride with the boys, the plaintiff struggles to go cycling for any extended distances. This has really impacted on the fun that they have together. She knows the plaintiff is disappointed that the injuries to his low back have impacted on their relationship.
134The plaintiff’s back pain has also impacted his relationship with the boys. His back pain can be easily aggravated if one of the boys makes a sudden movement when he is playing with them. This can cause his back to spasm. If this happens, he often needs to lie down on the floor. His back spasms can continue for five minutes to half an hour.
135The plaintiff was passionate about his career as a firefighter. She believes that he would have been a great station officer had he not been injured, because he had a great rapport with people. It is sad that he has had to give up the work that he loves.
136The plaintiff tried to get back to work, but struggled with sitting or standing for prolonged periods. Late last year, he found some work doing some fire safety training, but he could only manage this for a week or two. He had difficulty with the requirement to stand or sit for extended periods without the flexibility to be able to change position or rest when his back or left foot pain flared up. He realised that he would not be able to fulfill the requirements of the role because of the need to sit/stand for extended periods.
137She is not sure what the plaintiff could do for work on a reliable and consistent basis as he has not been able to maintain working approximately 14 hours a week on a part-time basis in an administrative capacity, even when working from home.[72]
[72]T47; The defendant objected to this paragraph of Mrs Benham’s affidavit on the grounds that it was hearsay or opinion evidence.
Loss of earnings
138Flexi Personnel provided an earnings report for the plaintiff in September 2014. An assessment of his potential income started with gross wages in the 2019/20 financial year, totalling $143,782.00 ($138,193.00 base wages, shift penalty rates and overtime paid, and $5,589.00 allowances paid).
139To that figure, interim wage increases were added which formed the basis of the “without injury” earnings figure relied on ultimately by the plaintiff.
140The author reported that, in 2024, a station officer with five plus years of service had the potential to earn $141,647.82 plus 5 per cent, = $148,730.21 + $6,092.00 =$154,822.21. This was described by the plaintiff’s counsel as the plaintiff’s “finishing salary”.[73]
[73]T2
Medical evidence
141The medical evidence is uncontroversial, but it is relevant in terms of examiners’ assessments of the plaintiff’s work capacity in recent years.
Treaters
Dr Kimberley Fayman, GP
142Dr Kimberley Fayman last reported in July 2024. She diagnosed multilevel disco vertebral and facet joint degeneration from L2 to L3 to L5-S1 inclusive, and also left sacroiliac joint instability.
143Exact restrictions related to the plaintiff’s various activities were, by the nature of the condition, impossible to quantify. The extent to which he was restricted could be quite variable on one day compared to the next and between activities. For example, he was only able to sit in some seats for ten to fifteen minutes before he must stand and in others, this may be extended to forty to sixty minutes.
144The plaintiff did not have the physical capacity to carry out the expected tasks of a firefighter, and this was likely to continue into the foreseeable future.
145She thought the plaintiff had the capacity to undertake suitable employment on an initial part-time basis and there would be multiple physical restrictions imposed on him an alternative role, needing to take regular rest breaks and avoidance of prolonged postures. He would have difficulty reliably attending employment on a daily basis because of the often unpredictable variability and severity of his symptoms, as well as his regular care requirements. He would require a slow and gradual introduction to the role and would not yet be able to work on a full-time basis.
146The plaintiff would have difficulty reliably attending employment on a daily basis because of the often unpredictable variability in severity of his symptoms, as well as his regular care requirements.
147Given the chronicity and degree of impact of the plaintiff’s symptoms, she envisaged his conditions would remain similar into the foreseeable future. She had hope for some improvement to his pain and level of functioning but expected that a future without pain was unlikely.
Dr Dan Bates, sports and exercise medicine physician.
148Dr Bates carried out a range of procedures. He diagnosed discogenic back pain and sacroiliac joint instability.
Medico-legal
Dr Mohammed Awad, neurosurgeon and spinal surgeon
149Dr Awad examined the plaintiff in May 2024. He thought the plaintiff presented with an aggravation of lumbar spondylosis.
150Work as a fire fighter remained a significant ongoing contribution to his back pain and disability and had most likely been the dominant contributing factor to aggravation of his lumbar spondylosis.
151He did not think the plaintiff in his current state has the capacity for his pre-injury employment as a full-time active firefighter. He clearly had some capacity for sedentary work on a part-time basis if a suitable job was available.
Dr Richard Sullivan, pain specialist
152Dr Sullivan examined the plaintiff in July 2024. He thought the incident had aggravated lumbar spondylosis and aggravated left-sided sacroiliitis. The ongoing principal diagnosis was aggravation lumbar spondylosis and left-sided sacroiliac joint pain.
153The plaintiff has no meaningful capacity to return to his pre-injury employment as a consequence of his lumbar spondylosis and his left sacroiliac joint pain.
Dr Dominic Young, occupational physician
154Dr Yong examined the plaintiff in August 2024. He thought the plaintiff had lower back injuries which were originating from the lumbosacral spine and sacroiliac joint with persisting lumbosacral dysfunction.
155He did not think the plaintiff has a physical capacity to perform his pre-injury duties.
156Noting the nature of the return to work programs and his workplace participation, it is likely the plaintiff would be able to return to work to a self-paced office-based role. It is likely that this office-based role would comply with the restrictions, and could be undertaken on a reliable and consistent basis.
157The plaintiff would benefit from an ergonomic assessment to ensure that his workstation is set up with sound ergonomic principles, which would not aggravate or exacerbate his lumbar spine condition.
158The initial return to work program for a self-paced, office-based role could commence with a reduction in working hours, such as three-hour shifts for two days per week. The plaintiff would have a capacity to participate in a graduated return to work program aiming to return back to his previous maximum working hours of 14 hours per week. This would be over a three to four-month period. It is likely that this would represent his maximum working hours.
Defendant’s medical evidence
Medico-legal
Dr Umberto Boffa, occupational and environmental physician
159Dr Boffa examined the plaintiff in November 2021 and August 2022. He thought the plaintiff had aggravated facetogenic back pain without radiculopathy with no evidence of sacroiliac joint dysfunction.
160As at 27 November 2021, the plaintiff had returned to pre-injury duties following injury performing non-operational duties. He was currently working 20 hours per week and remained certified fit for suitable employment.
161The plaintiff was fit for a gradual return to preinjury hours but not to preinjury duties.
162As at August 2022, the plaintiff was not physically fit for preinjury hours and duties, but had physical capacity for duties that allowed change in posture and avoided prolonged walking and repetitive pushing, pulling, lifting, and carrying 5kg, working four hour shifts five days per week. He had a current physical work capacity.
Dr David Vivian, musculoskeletal physician
163Dr Vivian examined the plaintiff in March 2022. He diagnosed non-specific left sacral pain referring to the left outer hip.
164He thought the plaintiff’s reported pain rather than the function of the lumbar spine would prevent him from returning to his previous job, as he described it as being very heavy, not only with lifting but also with wearing heavy equipment and working in awkward postures.
165He did not consider that there was a physical reason why the plaintiff could not work full-time. The plaintiff was fit for suitable employment from a physical perspective.
Dr Barry Slon, pain medicine physician
166Dr Slon examined the plaintiff in December 2022. He thought the plaintiff had a low grade mechanical back syndrome but probably a high degree of disability out of proportion to what was seen on examination that day.
167He did not think the plaintiff could return to his pre-injury duties and hours as a fireman. At the present time, he could make a return to non-active duty as a fireman. He and the plaintiff agreed that the plaintiff had a current work capacity for suitable employment.
Dr David Barton, occupational physician
168Dr Barton examined the plaintiff in February 2024. He diagnosed ongoing dysfunction of the lower back following a series of work injuries.
169He would accept that the plaintiff’s back condition does have an impact on his work capabilities and his ability to undertake various physical activities at home. He accepted there was a degree of residual disability.
170The plaintiff’s current situation would prevent him from returning to full active firefighting duties.
171Based on his understanding of the plaintiff’s current physical capabilities, and his experience as an occupational physician, he believed, with appropriate encouragement and reassurances, the plaintiff should be able to secure suitable employment. With the right job, the plaintiff could get back to full-time work.
172In his September 2024 report, he advised that he believed the plaintiff could undertake all of the duties detailed in the Recovre vocational report on a full-time and sustained basis, basing his opinion on his experience as an occupational physician and having an understanding of these various jobs as well as his detailed physical assessment.
Mr Kevin Siu, neurosurgeon
173Mr Siu examined the plaintiff in October 2024. He diagnosed chronic low back pain against a background of spondylosis without radiculopathy.
174He did not think it was prudent for the plaintiff to go back to operational duties as a fire fighter.
175He thought the plaintiff could manage to do teaching et cetera, provided it was tailored to his restrictions. If the plaintiff was able to work from home in a job that involved standing but not too much sitting, then he certainly could attempt it.
Mr Michael Dooley, orthopaedic surgeon
176Mr Dooley examined the plaintiff in October 2024. He diagnosed soft tissue injury to the lumbar spine that involved some aggravation of underlying degenerative change in the incident. It was probable in around 2020, a similar injury was sustained.
177He did not believe that the plaintiff will be able to return to active firefighting duties. In his view, the plaintiff had a physical capacity to carry out some light physical work and clerical type work.
178From an orthopaedic point of view only, the plaintiff has a physical capacity to carry out some light physical work and clerical type work. Return to such work would need to be on a graduated basis.
179From an orthopaedic point of view only, the plaintiff would have a physical capacity to work as a call centre worker, project administrator, facilities administrator and training and development officer. In clerical type work, he would need to be able to get up and move around, stretch, et cetera. Again, from an orthopaedic point of view only, in time, the plaintiff would have a physical capacity to work full time hours.
Overview
Pain and suffering
180It is not in issue that the plaintiff suffered spinal injury during the course of his employment and in particular in the October 2016 incident.
181The consensus of opinion is that the plaintiff suffered an aggravation of lumbar spondylosis and left sided sacroiliac joint pain as a result of his work duties.
182Pain and suffering, while not conceded, was only addressed briefly by the defendant in its submissions. The plaintiff’s camping trips and activities with his family since ceasing work with the defendant were cross-examined upon more in the terms of his ability to work rather than the nature of those activities. The defendant “highlighted this as a significant inconsistency, and something that speaks to the plaintiff's true level of capacity”.[74]
[74]T51
183The defendant accepted that the plaintiff cannot work in his pre-injury role, but maintained that his application in relation to pain and suffering “reveals consequences which do not rise to the requisite level of seriousness”.[75] For example, he has not undergone any surgery, and he does not have significant issues with sleep.[76]
[75]T49
[76]T55-56
Credit
184As Maxwell P said in Haden Engineering:[77]
“… 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.”
[77]At paragraph [12]
185I found the plaintiff to be a truthful, reliable witness. I accept he is a man with a strong work ethic, who loved his job as a fire fighter and who would be working now in some role in the fire service or elsewhere if not for his serious spinal condition.
186None of the material on Facebook or any of the plaintiff’s activities on recent camping trips changed my view in this regard. I accept he is a family man who wants to give his children experiences even if doing so causes him back pain.
187While medical examiners may not have been aware of the plaintiff’s camping activities, the level of activity involved and the plaintiff’s pain and discomfort while travelling with his family does not undermine their opinions as to the plaintiff’s work capacity.
Pain
188In Haden Engineering, President Maxwell stated the evidentiary basis of the pain assessment would ordinarily comprise, inter alia, what the plaintiff says about the pain (both in Court and to doctors).[78]
[78]Haden Engineering at paragraph [11]
189Most days the plaintiff is in considerable back and left hip pain as a result of which he has difficulty with prolonged postures, sleeping, sexual intimacy and his domestic and social activities are restricted.
190Since 2016, he has undergone a wide range of medical procedures and requires ongoing Celebrex and Duloxetine for his back and left hip pain.
191As Dodds-Streeton J said in Kelso v Tatiara Meat Company Pty Ltd:[79]
“… The chronic pain was a prominent feature of the appellant’s case. The endurance of permanent daily pain requiring frequent medication, must, according to ordinary human experience, raise a real prospect of a ‘very considerable’ consequence.”
[79](2007) 17 VR 592 at paragraph [199]
192Significantly, as a result of his injuries, the plaintiff has lost his dream career as a firefighter, a job he lived for, his lifelong passion from the time his father worked as a Commander in the Brigade. Part of him has now been lost because of his work injury.[80]
[80]Haden Engineering at paragraph [15]; Peak Engineering & Anor v McKenzie [2014] VSCA 67 at paragraph [38]; Ellis Management Services Pty Ltd v Taylor (2013) VSCA 326 at paragraph [35]
193It is clear from the plaintiff’s affidavits and viva voce evidence that, prior to his injury in 2016, he led a very active and physical life engaging in a wide range of strenuous sporting activities requiring a very high level of fitness and training.
194This situation changed significantly after his 2016 injury. He has not resumed many of the activities he previously enjoyed at a high level and his sporting activities which were so much a part of his identity have been lost to him.
195As counsel for the plaintiff submitted:
“In terms of pain and suffering…this is constant, often severe low back pain, four or five days a week so severe it troubles in the morning – all the things he liked doing, his world games, the fitness and the activities he had he deposes to, have been taken from him. He is left with the capacity – like caravanning with his family with increased pain, which is a serious consequence for him”.[81]
[81]T60-61
196Taking into account all the evidence, I am satisfied that the consequences of the plaintiff’s work injury are serious. Despite significant treatment for over seven years, there has been no sustained improvement and his condition is permanent.
197Accordingly, I grant leave to the plaintiff to bring proceedings for damages for pain and suffering.
Economic loss
198Having satisfied the narrative requirements to obtain leave in relation to loss of earning capacity, the plaintiff must also establish that:
(a) at the date of the hearing, he has a loss of earning capacity of 40 per cent or more – s325(2)(e)(i); and also
(b) after the date of hearing, the relevant loss of earning capacity will continue permanently – s325(2)(e)(ii).
199The measurement of loss of earning capacity is set out in paragraph (f) which requires a comparison between:
(i) “after injury” earnings; and
(ii) “without injury” earnings.
200The former must be calculated by reference to the six-year period specified in s325(2)(f)(ii).
201“Without injury” earnings consist of the gross income (expressed at an annual rate) that the worker was earning or was capable of earning from personal exertion or would have earned or would have been capable of earning from personal exertion had the injury not occurred.
202It is to be calculated by reference to that part of the period within three years before and three years after the injury as most fairly reflects the worker’s earning capacity.
203The plaintiff carries the onus of proof in relation to economic loss and particularly in establishing satisfaction of the criteria in paragraphs (e), (f), and (g) therein.[82]
[82] Barwon Spinners Pty Ltd & Ors v Podolak (supra)
204I am therefore required to determine a “without injury” earnings figure. Submissions were made by counsel in this respect.
205The defendant argued the October 2016 was the “benchmark” for measuring the without injury earnings, and the plaintiff’s earnings in 2019, three years post-injury, was the relevant figure.
206At the time of the October 2016 injury, the plaintiff was a leading fire fighter, and the training to be a station officer occurred subsequent to the October 2016 incident.[83]
[83]T6
207The plaintiff agreed with the proposition that he thought the station officer role would be more appropriate. Training for that role was undertaken in 2019, so in this is a case where what has occurred after October 2016 goes to the “without injury” earning capacity. Further, the plaintiff’s more strenuous activities came to a halt in in 2016.[84]
[84]T49
208The relevant figure is $138,193 being the plaintiff’s taxable income in the 2019/20 financial year, three years post the 2016 incident. 60 per cent thereof is $1,595 gross per week.[85]
[85]T6; see Annexure 1
209It was submitted the vice in the Flexi figures relied on by the plaintiff is they “pick up on what the plaintiff was doing last.”[86]
[86]T50
210Counsel for the plaintiff submitted that the plaintiff did recover a capacity for work after the 2016 incident, and in February 2019, went back to full-time work before the re-injury in 2020 caused him to have to go on reduced hours and duties. He ultimately had to leave work and left work in March 2022 because of his work injuries.[87]
[87]T7
211The earnings figure for 2024 is within the three year period one looks at.[88]
[88]T59
212The Flexi report set out the plaintiff’s finishing salary as a station officer would now be $154,000. The gross figure for economic loss was therefore $2,977 per fortnight, of which 60 per cent is $1,786.
“Without injury” figure
213The Act limits the calculation of preinjury earning capacity to the six-year period around the time of the injury. This application involves both an incident at work in October 2016 and injury during the course of employment, the plaintiff finally ceasing work in March 2022.
214The scenario that most fairly reflects the plaintiff’s without injury earnings in these circumstances, is the figure relied on by the plaintiff, coming within the 3 years of the end of the period of employment.
215However, for the reasons below, I am satisfied the plaintiff has suffered the requisite 40 per cent loss even on the lower figure relied on by the defendant.
Defendant’s submissions
216Save for one attempt in December 2023, the plaintiff has not made any further attempt to return to work. This was not a genuine attempt, given the caravanning activity that was going on in September and November 2023 as revealed by the social media and also the other travel undertaken by him.[89]
[89]T56
217Further, the one and only other position that the plaintiff had applied for at Basketball Australia, “seemed to touch on and embrace his administrative and managerial skills”,[90] and is the type of work identified by Recovre.[91]
[90]T56
[91]T53
218The plaintiff is, or will be capable of, working in the proposed jobs suggested by Recovre; namely, exercise physiologist $1,694, program-project administrator $2,219, facilities administrator $1,583, vocational education teacher $2,094, and occupational training and development professional $2,144.
219All of these jobs on a full-time basis exceed the 60 per cent threshold of $1,595 gross per week.[92]
[92]T6
220The plaintiff has a greater capacity for work in terms of hours. 14 hours is not the extent of his capacity, nor is the two shifts of seven hours a day, given the plaintiff’s demonstrated capacity to go on caravaning trips, none of which had been revealed to the various doctors relied on by the plaintiff. Those doctors have a picture of inactivity; they do not have a true full picture of the plaintiff going on extended caravanning holidays with his family.[93] To the extent that Dr Yong puts such a tight restriction on the plaintiff's hours of work, this is undermined by that lack of any true understanding of the plaintiff's retained capacity.[94]
[93]T52-53
[94]T53
221Further, Dr Yong is in some respects an outlier, having put a restriction of a maximum of 14 hours work per week.[95]
[95]T52
222Other medical examiners considered the plaintiff has a greater work capacity. In 2021 and 2022, Dr Boffa thought the plaintiff could work 20 hours a week. In May 2022, Dr Vivian thought he could work full time. Later that year, Dr Slon did not put any time restriction, but was suggesting fulltime work and also endorsed the IPAR jobs. Earlier this year, Dr Barton clearly supported full-time work, and he endorsed the Recovre jobs.[96]
[96]T52
223In October this year, Dr Siu did not specify any restriction in hours. Mr Dooley thought initially the plaintiff was able to return to work on a graduated basis with a view to going to fulltime work.
224The treating GP, Dr Fayman, and medico legal examiners, Dr Awad and Dr Sullivan did not put any restriction on hours of work in their reports.[97]
[97]T52
225The plaintiff is well-qualified, and “it is not a stretch at all” to suggest that he could engage in the types of suitable employment that have been identified by Recovre.[98]
[98]T56
226Also, in relation to the plaintiff's work capacity, there is no reference to any side effects of medication. When the plaintiff was assessed by Dr Yong recently, Dr Yong took at history that the plaintiff's medication did not cause any side effects.[99]
[99]T55
227Further, the plaintiff has the onus of showing that he is engaged in reasonable efforts to retrain and rehabilitate.[100]
[100]T56
228Recovre identified some retraining – a Certificate IV in Training and Assessment – for the vocational education teacher role and the occupational training and development professional.[101] There is no impediment to the plaintiff undertaking this course. Some roles identified did not require any retraining.[102]
[101]T54
[102]T55
Plaintiff’s submissions
229Dr Yong is not an outlier. In terms of the plaintiff’s work capacity, Dr Awad said:
“In his current state I do not think he has the capacity for his pre-injury employment as a full-time active fire-fighter. He does clearly have some capacity for sedentary work on a part-time basis if a suitable job was available.”[103]
[103]T58
230Further, Mr Dooley, by inference, regards the plaintiff as unfit for other than part-time work and is optimistic something might change in the future. His opinion is from an “orthopaedic point of view only.” It is not just an orthopaedic question, it is a question whether the plaintiff can actually be reliable.[104]
[104]T59
231Dr Yong opined:
“The initial return-to-work program could commence with a reduction in working hours such as three-hour shifts or two days per week. He would have a capacity to participate in a graduated return-to-work program aiming to return back to his previous maximum working hours of 14 hours a week, and this would be over a three-to-four-month period. It is likely that this would represent his maximum working hours”.[105]
[105]T58-59
232The plaintiff tried working 14 hours and could not cope. That is a reasonable benchmark Dr Yong came to saying that is as much as the plaintiff can do. The plaintiff cannot be taken to be fit for full time work as the defendant submitted. Mr Dooley thought the plaintiff does not have that present capacity and Dr Barton only thought there was a theoretical capacity for return to full-time work.[106]
[106]T59
233The evidence disclosed that the plaintiff is an impressive man with a good work ethic who has tried to find work he can do. The evidence shows he sustained injury to his back in the October 2016 incident, stayed at work with lighter duties, was cleared for full duties back in 2019, and worked again until he re-injured his back in 2020.[107]
[107]T57
234Between 2020 and 2022, he continued to work restricted light duties that caused him great trouble, and could not work more than 14 hours a week. When counsel for the defendant submitted that the plaintiff has not tried to work except for last year, that was wrong: he has, he has been trying to work since 2016.[108]
[108]T57
235The plaintiff tried 14 hours a week with the defendant, good as it can be working from home, having to come to work sometimes, but he could not manage it. He tried a seven-hour day, could not manage that. He could not be reliable. He wakes up three or four days a week with severe pain. Bearing that in context, this is a man who is unlikely to be reliable because of the flare ups of back pain, and if he has a capacity for suitable work, it is only on a very limited part-time basis.[109]
[109]T58
236Caravanning is something that the plaintiff does for his family that causes him pain. He would rather not do it; he says he is going to have terrible pain just walking around playgrounds and so on and has to lie down, but he is doing it for the sake of his children. That does not change fact that this man has tried as hard as he can to find work and has been unable to do it.[110]
[110]T59-60
237Counsel for the plaintiff submitted that ultimately the plaintiff:
“finds himself off on a pension, first temporary and now permanent. But where there’s a real incentive to work because he’s losing a third of his income, and he finds this ideal job for him, he says he’s going to be sitting and standing at will, I know the people, I know the work, they have me work a seven-hour day, I can only do that – only can do that not every day of the week, but even to [sic] isolated seven-hour days was too much for his pain”.[111]
[111]T57
Findings
238I accept that the plaintiff, a man with a very strong work ethic, would be working if he was physically able. However, as he explained he would be an unreliable employee because of his constant back and left hp pain and difficulty with prolonged sitting and standing.
239The plaintiff tried to continue in the defendant’s employ in a job he loved for as long as he could, undertaking restricted duties at various times after his initial October 2016 injury. However, by 2022, remaining working in the Brigade became untenable even working just 14 hours per week. His December 2023 attempt to work at ERS was similarly unsuccessful.
240Although the plaintiff is in receipt of a full pension, he still has the motivation to return to work as he is losing one third of his income. He has done his best to try to rehabilitate himself as Dr Bates confirmed.
241While the defendant focussed on the plaintiff’s caravanning activities, I accept the plaintiff’s explanation that he tries to do his best for his children and that during these trips, he was not particularly active standing around a lot of the time “watching”. Even with this limited activity, he experienced significant back and left hip pain. In my view, these activities do not demonstrate any significant capacity for work which the plaintiff would be required to attend on a reliable, consistent basis.
242I accept that the plaintiff could not tolerate working just 14 hours on his most recent attempt in December last year. Even working those limited hours he was “not overly productive. He has been unable to work 20 hours per week since 2020. This situation is likely to continue.
243Which ever without injury earnings figure is used- $1,595 or $1,786 per week– working 14 hours per week or even 20 hours, the plaintiff suffers the requite 40 % loss.[112]
[112]T60
244Given that the plaintiff’s symptoms continue, despite significant treatment since 2016, I am satisfied that his impairment is permanent.
245I am also required to consider issues of retraining and rehabilitation pursuant to ss(g).
246In light of my findings as to the plaintiff’s impairment and his incapacity for employment, I am satisfied there is no rehabilitation or retraining that would be appropriate to be undertaken by him which would alter the situation that he has a permanent loss of earning capacity of 40 per cent or more. As rehabilitation and retraining have nothing to offer the plaintiff in terms of his capacity for employment, the plaintiff has satisfied the requirements of ss (g).
247Accordingly, I also grant leave to the plaintiff to bring proceedings for damages for loss of earning capacity.
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Annexure 1: Plaintiff’s Taxable Income
Year
Gross income
2013-2014
$72,193
2014-2015
$76,770
2015-2016
$88,947
2016-2017
$95,583
2017-2018
$101,633
2018-2019
$103,793
2019-2020
$138,193
2020-2021
$117,486
2021-2022
$116,670
0
6
0