Bertholot v TAC; Bertholot v 7 Steel Distribution Pty Ltd
[2014] VCC 330
•21 August 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
BETWEEN: Case No. CI-09-05491
| OSWALD BERTHELOT | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
BETWEEN: Case No. CI-12-04726
| OSWALD BERTHELOT | Plaintiff |
| v | |
| 7 STEEL DISTRIBUTION PTY LTD | Defendant |
---
JUDGE: | HER HONOUR JUDGE MILLANE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19, 20, 22 and 23 May 2014 | |
DATE OF JUDGMENT: | 21 August 2014 | |
CASE MAY BE CITED AS: | Bertholot v TAC; Bertholot v 7 Steel Distribution Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 1330 | |
REASONS FOR JUDGMENT
---
Subject: Serious injury application
Catchwords: Applications for leave to recover damages for pain and suffering only for injury to spine in transport accident and later work-related injury - pre-existing injury to spine - credit and disentanglement issues - dispute as to whether the pain and suffering consequence was serious
Legislation Cited: Accident Compensation Act 1985 (Vic), Transport Accident Act 1986
(Vic)
Cases Cited:TAC v Zepic [2013] VSCA 232, Humphries v Poljak [1992] 2 VR 129,
Richards v Wylie (2000) 1 VR 79, Barwon Spinners Pty Ltd & Others v Podolak [2005] 14 VR 622, Petkovski v Galetti [1994] 1 VR 436, AG Staff Pty Ltd v Filipowicz & Ors [2012] VSCA 60, Bezzina v Phi [2012] VSCA 161, Peak Engineering Pty Ltd & Victorian Workcover Authority v McKenzie [2014] VSCA 6, Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69, Sutton v Laminex Group Pty Ltd [2011] VSCA 52, Aburrow v Network Personnel Pty Ltd [2013] VSCA 46, Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326, Stijepic v One Force Group Pty Ltd [2009] VSCA 181
Judgment: Plaintiff’s application for leave pursuant to subsection 93(4)(d) of the Transport Accident Act 1986 dismissed.
Plaintiff’s application for leave pursuant to subsection 134AB(16) of the Accident Compensation Act 1985 dismissed.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr G. Worth | Nowicki Carbone |
| For the Defendant, Transport Accident Commission | Mr G. Lewis SC with Mr P. Gates | Solicitor to the Transport Accident Commission |
For the Defendant, Ms A. Magee Lander & Rogers
7 Steel Distribution Pty Ltd
HER HONOUR:
Introduction
1 The plaintiff is 52 years of age and divorced with children and grandchildren. I was told that the plaintiff separated from his first wife and divorced in 2003. A second marriage in November 2011 failed in 2012. The plaintiff now lives in his parents’ home.
2 The plaintiff migrated from Mauritius at age 9. He was schooled to the end of Year 11. At various times until 1997, the plaintiff held jobs as a storeman, forklift driver and reactor operator.
3 The plaintiff has a history of claims made for injury to his spine in the period between 19 February 1987 and 28 May 1997.[1] More particularly, in or about December 1993, 11 and 12 April 1994 and 28 May 1996 the plaintiff suffered injury to his spine in the course of his employment as a reactor operator with Henkel Australia Pty Ltd (Henkel). The plaintiff was retrenched on 24 February 1997.
[1] Exhibit WC 1, Victorian WorkCover Authority Court Book (WC) 1-15
4 A Writ and Statement of Claim filed on 1 October 1997 against Henkel (the Henkel proceeding) particularised injury as: “Injury to the thoracic and lumbar spines with the production of and/or aggravation and acceleration of degenerative changes; Production of and/or aggravation and acceleration of L4-5 spondylolisthesis; Sciatica extending into the lower limbs; Severe anxiety and depression.”[2]
[2] Exhibit TAC 1, Transport Accident Commission Court Book (TAC) 122-128
5 At hearing, among other things, the plaintiff agreed that prior to retrenchment by Henkel his lower back condition remained symptomatic, he was undergoing physiotherapy and for perhaps two years he had worn a sacro-cinch back support.[3]
[3] Transcript (TN) 47
6 By a release entered into on 18 November 1998, the plaintiff settled his claim for serious injury and damages brought pursuant to section 135A of the Accident Compensation Act 1985 (the Act) for the sum of $125,000, with retention of any sum previously paid pursuant to the Act and costs.
7 In opening the plaintiff’s case it was conceded that in 1997 the plaintiff was diagnosed with bipolar disorder, with episodes of manic behaviour from time to time. I will discuss the mental health issue in more detail shortly.
8 In his first affidavit the plaintiff swore that his back injury had recovered and he had been leading a pain-free life up to 10 August 2007.[4]
[4] Exhibit P1, Plaintiff's Court Book (PCB) 14
9 The plaintiff deposed that from 2002 he held various jobs as a picker and packer for approximately 12 months with the Beasley Liquor Group, as a storeman for approximately 12 months with Ernest Hillier chocolates and, as a storeman and forklift driver, for approximately 18 months with Ital Biscuits.[5]
[5] PCB 20
10 In September 2006, a doctor certified the plaintiff fit for employment with Sim Steel, subject to restrictions on handling weights in excess of 20 kilograms.[6] The plaintiff was initially employed by Sim Steel as a storeman, with restrictions on repetitive bending and lifting weights exceeding 15 to 20 kilograms. According to the plaintiff, he coped well with this job, which had involved a customer service/picking role and often required him to pull, lift and carry relatively heavy pieces of cut steel.[7]
[6] Exhibit P3
[7] PCB 20
11 The plaintiff made two applications for leave. He gave evidence and was cross-examined at length. Multiple reports from treating and medico-legal doctors and extracts from clinical records were tendered as well as a large body of documents relating to historical events, the transport accident and the work-related injury. Admissions were made during the course of the hearing regarding medical certificates issued covering the period 10 August 2007 to 27 July 2012.[8]
[8] TAC 4
The first application
12 Under the first application the plaintiff sought leave to bring proceedings against the Transport Accident Commission (TAC) for damages in respect to injury suffered by him as a result of a transport accident on or about 10 August 2007. On that date a vehicle driven by a third party collided with a vehicle driven by the plaintiff (the transport accident). The circumstances giving rise to the transport accident and injury were described in the first of five affidavits sworn by the plaintiff as follows: [9]
[9] PCB 13 and PCB 34
“9.… Another vehicle failed to give way to me as it exited a service lane and my lane. The front left side of my vehicle collided with the front right side of the other vehicle. My vehicle was pushed out of my lane and across to the other side of the road by force of the impact. I was wearing a seatbelt at the time of the collision. I was able to exit the vehicle and wait at the side of the road until a tow truck arrived, but I was immediately aware of pain around my rib cage. The next morning I awoke with severe pain in my back, neck and shoulders, in addition to pain radiating around my rib cage.”
13 The plaintiff’s later claim for: “neck strain, thoracic back pain, shoulder pain – left side, shoulder pain – right side, low back pain, rib pain, nightmares, disturbed sleep”,[10] was accepted.
[10] PCB 64
14 The application for leave was made pursuant to subsection 93(17)(a) of the Transport Accident Act 1986 (the TAC Act). This provision defines “serious injury” as “serious long-term impairment or loss of a body function”.
15 The injury alleged was impaired function of the plaintiff’s spine as a whole, alternatively impaired function of his lumbar, thoracic and/or cervical spine. The decision of the Court of Appeal in TAC v Zepic[11], among other things, confirms that the spine is a single body function and, it follows, the consequences of injury suffered in the transport accident to various segments of the spine may be aggregated to establish serious injury.
[11]TACvZepic [2013] VSCA 232 [11]
16 In a Statement of Issues (and through his counsel’s opening) the plaintiff alleged serious injury with respect to each segment of the spine as follows:
· as to the lumbar spine, the plaintiff alleged – “permanent serious aggravation of degenerative changes, and/or permanent series (sic) aggravation of bilateral pars defects at the L4 level with aggravation of spondylosis and the onset or aggravation of spondylolisthesis, and/or permanent serious soft tissue injury of the discs and structures in the lumbo sacral spine”. In this regard the plaintiff also relied on the result of cervical and lumbar spine MRI scans obtained on 28 May 2009,[12] which reported, among other things, “(t)ransitional lumbosacral anatomy is apparent, with assignment of six lumbar type vertebrae … Based on this, bilateral L5 pars defect, a grade 1 L5/6 anterolithesis, facet joint hypertrophy and broad-based posterior disc protrusion combine to narrow/distort the neural exit foramina, with evidence for bilateral L5 nerve root impingement (R > L).”
[12] PCB 77-78
· As to the cervical spine, the plaintiff alleged – “permanent serious aggravation of degenerative changes, and/or permanent serious onset or aggravation of broad based disc protrusion and C5/6 with bilateral neural exit foraminal encroachment and evidence of C6 nerve root impingement (see MRI 28 May 2009), and/or permanent serious soft tissue injury to the discs and structures within the cervical spine.”
· As to the thoracic spine, the plaintiff alleged – “permanent serious aggravation of degenerative changes within the thoracic spine and/or permanent serious soft tissue injury to the discs and structures of the thoracic spine.”
17 In summary, it was submitted that the evidence indicated the transport accident had aggravated degenerative changes in the spine and led to the onset of or aggravated spondylolisthesis.
18 The plaintiff was required to establish that the injury suffered to his spine as a result of the transport accident was a serious injury which existed at the date of the determination of his application for leave. Serious injury is determined by considering the consequences of injury and related impairment or loss of body function.
19 Under paragraph (a) of the definition, the consequences relating to pain and suffering and pecuniary disadvantage of any injury to the plaintiff’s spine must be both long-term and serious to the plaintiff, such that, when judged by comparison with other cases in the range of possible impairments or losses, these consequences can be fairly described as at least “very considerable” and certainly more than “significant” or “marked”.[13]
[13]HumphriesvPoljak [1992] 2 VR 129, 140
20 In this regard, the plaintiff particularly relied on the onset of daily pain, the need for daily pain medication, impairment of his capacity to perform his pre-injury employment as a storeman, which his counsel submitted had persisted until the advent of the work-related injury and impairment of a range of social, recreational and domestic pursuits.
21 The plaintiff did not tender psychological evidence. As I understood counsel’s closing address, the plaintiff did not also seek to have the seriousness of the injury to his spine measured by his mental response, if any, to any additional physical impairment arising from the transport accident.[14]
[14]Richards v Wylie (2000) 1 VR 79, 87-88 and TN 328
The second application
22 Under the second application the plaintiff sought leave to commence common law proceedings pursuant to section 134AB(16)(b) of the Act to recover damages for injury to the plaintiff’s spine sustained in the course of his employment with the defendant, 7 Steel Distribution Pty Ltd (7 Steel), in particular between late 2009 and 2 March 2010.
23 In a second affidavit, sworn on 28 April 2011, among other things, the plaintiff deposed to work-related injury, occurring in the following circumstances:[15]
[15] PCB 20-24
“7. After the car crash I was off work for some months before returning to work at Sim Steel on reduced hours and modified duties.
8. Whereas before the car crash I was performing the relatively heavy duties of storeman/customer service, after the car-crash I was restricted to work using a mechanized saw. I do not believe I ever returned to my pre-car crash duties, nor do I believe I was capable of doing so.
9. My duties on the mechanized saw included positioning pieces of steel correctly beneath the saw and then programming the motorized saw to perform the correct cut.
10. Whilst my work premises were situated at Campbellfield, my work was aided by the use of an overhead crane and a mechanised conveyor belt, both of which allowed me to position the steel for sawing without a great deal of physical exertion.
11. I managed to cope with my duties at Sim Steel by limiting physical activity, only working modified duties, and by taking analgesic and anti-inflammatory medications. However, notwithstanding the modified duties and pain-killing medication, my lower back, mid-back, upper back, neck and shoulders still generally ached at the end of a working day and I had to limit my domestic and social activities.
…
15. In or about June or July 2009 Sim Steel was purchased by 7 Steel and towards the end of 2009 7 Steel made the decision to move from Campbellfield to new premises at Laverton.
16. At the new premises, I was required again to use a mechanised saw, but the conveyor was no longer mechanised. I was required to manually pull the steel beams into place for cutting across a system of rollers.
17. As a result of having to manually manoeuvre steel beams on the rollers whilst working for 7 Steel I experienced exacerbation of the pain in my lower back.
18. I commenced using the new saw, with the non-mechanised roller system, before Christmas 2009. In or about January 2010 I recall an episode of increased lower back pain with the pulling required to manually manoeuvre a steel beam into place for cutting. I believe I reported this incident and I recall attending upon my physiotherapist. I believe I had approximately 1 week of light duties following this incident, at which time I trained another worker on the saw.
19. Approximately two weeks after the first incidence of aggravated lower back pain, on or about 2 February 2010, I again experienced increased lower back (sic), again as a consequence of pulling a steel beam manually on the rollers. In this incident I also sustained a crush injury to the 4th and 5th fingers of my left hand and I recall that at the time my greater concern was for my fingers and I attended Sunshine hospital for scans to see if the fingers were fractured.
20. Following this second incident I again had some physiotherapy treatment and returned to work. Again I had light duties for another week or two. On or about 2 March 2010 I had a third incidence of increase lower back pain when I was again pulling a steel beam along the rollers to position beneath the saw. On this occasion I fell over backwards and had to be helped up by a co-worker. Shortly thereafter, I attended upon Dr Tunaley and was certified unfit for work.
..
22. I do not believe I sustained any new injury or exacerbation of injury to my mid-back, upper back, neck or shoulders by reason of my work at 7 Steel.
23. I have not made a return to work since 2 March 2010. 7 Steel closed down and my position was made redundant in or about June 2010.”
24 The plaintiff was required to prove that he had suffered compensable injury arising out of or in the course of his employment with the second defendant on or after 20 October 1999. This was not an issue in this application as the second defendant conceded compensable aggravation injury to the plaintiff’s lumbar spine but not original injury to the lumbar spine or aggravation or original injury to the cervical and thoracic spine.
25 In accordance with section 134AB(37)(a) of the Act, to establish “serious injury” the plaintiff was required to prove on the balance of probabilities that he had suffered permanent serious impairment or loss of a body function. Leave was sought under paragraph (a) of the definition of “serious injury” to recover damages for pain and suffering only in relation to a “new permanent” serious injury, alternatively an aggravation injury involving the plaintiff’s spine. However, despite the plaintiff’s affidavit and oral evidence in which he described injury to the lumbar spine only, at hearing his application was argued on the basis that the plaintiff sustained work-related impaired functioning of the spine or, in the alternative, impaired functioning of the lumbar, thoracic and cervical spine.
26 In his Statement of Issues the plaintiff alleged serious injury with respect to each segment of the spine as follows:
· as to the lumbar spine, the plaintiff alleged – “serious permanent aggravation of the chronic pars defects at L4 with the onset of 9mm of anterolisthesis of L4 on 5 with effacement of both the L4 nerve is within their foramina by the uncovered disc bulge (see MRI 13 September 2010…). In the alternative the plaintiff relies upon permanent serious aggravation of pre-existing degenerative changes within the lumbar spine, and/or permanent serious soft tissue injuries to the disc structures within the lumbar spine.”
· As to the thoracic spine, the plaintiff alleged – “mild left T8/9 foraminal compromise, mild-to-moderate lateral recess narrowing at the left T9/10 level secondary to a left paracentral disc protrusion with likely contact and irritation, and/or permanent serious aggravation of pre-existing degenerative change, and/or permanent serious soft tissue injury (see MRI thoraco lumbar spine 13 September 2010…).”
· As to the cervical spine, the plaintiff alleged – “permanent serious aggravation of degenerative changes within the cervical spine and/or permanent serious soft tissue injury to the disc and structures of the cervical spine.”
27 In summary, it was submitted that the work-related injury had involved further aggravation of degenerative changes in the spine and had worsened the spondylolithesis.
28 Under the Act “permanent” refers to impairment of the spine that was: “likely to last for the foreseeable future”.[16] Section 134AB(38)(c) provides that the pain and suffering consequence of the work-related injury must, when judged by comparison with other cases in the range of possible impairments or loss of a body function, be fairly described as being more than “significant” or “marked” and as being at least “very considerable”.
[16]Barwon SpinnersPty Ltd&OrsvPodolak [2005] 14 VR 622 [33]
29 Section 134AB(38)(h) further provides that any psychological or psychiatric consequence of the work-related injury must be disregarded when assessing any consequences of impairment or loss of function of the plaintiff’s spine under paragraph (a) of the definition.
30 As to the consequences of any work-related injury, the plaintiff generally alleged a new permanent serious injury or, in the alternative an aggravation injury which in itself was serious. Against a background of already very considerable impairment of the spine, the plaintiff relied on the destruction of his capacity for pre-injury employment, increased daily pain and an increased need for medication with additional restrictions on already compromised activities of daily living, social, recreational and domestic pursuits. In this regard, the plaintiff specifically drew attention to the impact of his disability on his sexual function and sleep.
The dispute
31 It was common ground that where, as in this case, the plaintiff had suffered from a pre-existing condition or injury involving his spine before the transport accident and before the work-related injury:
· the plaintiff was required to establish the nature of the injury caused by the transport accident and later by the work-related injury;
· the Court was required to analyse the extent of impairment of the function of the plaintiff’s spine before and after the transport accident and before and after the work-related injury;
· the plaintiff was required to identify the consequences properly referable to the transport accident and to the work-related injury;
· the plaintiff was required to satisfy the Court that any additional impairment in respect to the transport accident involved long-term serious impairment or loss of function of the plaintiff’s spine and/or that any additional impairment in respect to the work-related injury involved permanent serious impairment or loss of function of the plaintiff’s spine.[17]
[17] See Petkovskiv Galletti [1994] 1 VR 436, AG Staff Pty Ltd v Filipowicz & Ors [2012] VSCA 60 [27]
and [29], BezzinavPhi [2012] VSCA 161 [23] and Peak Engineering Pty Ltd and Victorian WorkCover
Authority v McKenzie [2014] VSCA 67 [2] and [23]-[24]
32 Relevantly, in his closing address, in addition to articulating the nature of the injury alleged against each defendant (“aggravation of degenerative changes in the lumbar thoracic and cervical spine and/or soft tissue injuries to those areas”), counsel for the plaintiff submitted that progression of anterolisthesis shown on the radiology was attributable to, firstly, the transport accident and, secondly, the workplace injury.[18] As the defendants observed, the latter submission represented an impermissible conflation of the evidence against the two defendants.
[18] TN 282-283
33 The plaintiff’s counsel, nonetheless, appeared to concede, that the radiology and the medical evidence had not established the extent to which, if any, anterolisthesis had progressed as a result of injury suffered in the transport accident or as a result of the workplace injury.[19]
[19] TN 283-286
34 The defendants each argued that the plaintiff had not established serious injury under either the Act or the TAC Act.
Credit issues
35 There were numerous inconsistency and contradictions in the plaintiff’s evidence. He did not present as a forthright witness. The responses given concerning the period over which the plaintiff used the drug, marijuana and the evidence concerning the plaintiff’s behaviour during likely periods of mania illustrate the latter point. This is not to deny that on many occasions throughout lengthy cross-examination the plaintiff conceded various matters put to him. I will deal with these matters as they arise.
36 Importantly, cross-examination also established a clear conflict between the affidavit evidence of the plaintiff and his son, Nathan Berthelot on the one hand and various concessions made by the plaintiff under cross-examination. As a result, I could not be satisfied that the evidence of the plaintiff and his son was reliable, particularly where their evidence articulated the consequences of injury. In short, I formed the view that the plaintiff had exaggerated the consequences alleged. It is convenient to deal with this aspect of the evidence now.
37 The affidavit material, some of the histories repeated by doctors and various responses given by the plaintiff under cross-examination and extracted below, illustrate this conflict in the evidence.
38 The plaintiff relevantly alleged that in the years immediately preceding the transport accident his pre-existing back condition had substantially improved, he had required significantly less treatment and he had regained “much” of his capacity for recreational pursuits, for activities of daily living and for employment.[20]
[20] PCB 34
39 In his affidavit material, the plaintiff deposed to consequences which included the following:[21]
[21] PCB 16-17, 38 and 59
In his first affidavit sworn 19 February 2009 –
“25. Prior to the motor vehicle accident and the injury to my back, I used to enjoy ten pin bowling with my friends and my family. This was a fond and fulfilling hobby that I often used play (sic) a couple of times per week and for a few years played competition. However, since the motor vehicle accident and the injury to my back, I have avoided attempting to bowl because the balls are too heavy and the twisting and swinging motions would cause me to experience a lot of pain in my neck, back and shoulders. This upsets me greatly because I can no longer enjoy bowling in my spare time and now spend more time resting or watching television. I occasionally go and watch some friends play a game or two, however I am now reluctant to even do this as I am frustrated that I cannot compete.
…
32. Since the motor vehicle accident and the injury to my back, I no longer participate in my hobby of fixing cars. I would often work on my car or help a mate on his car during the weekends. There would always be something to do because we were passionate about cars. We would often go to car shows and street shows. I am now however reluctant to do any work on cars as I fear it may cause me further injury as it involved heavy lifting. I feel as though this hobby has been taken away from me and I no longer hold the same passion as I did before the motor vehicle accident.
33. Since the motor vehicle accident and injury to my back, I no longer go shooting or camping. On many occasions my mates and I would travel to the country and go 4 wheel driving on to country properties where we would shoot wild vermin. I have not been camping or shooting since the motor vehicle accident and do not believe that I will again due to the injuries I sustained in the motor vehicle accident. ”
In further affidavits, sworn on 7 May 2014 in the transport accident claim and in the work-related injury respectively –
“18. My social activities remain very considerably curtailed. I am now generally performing no 10 pin bowling, which had been a favourite of mine in the past. I am also generally no longer playing pool with friends, another activity which had been a favourite of mine. I do continue to occasionally go to the local football ground to watch the Glenroy Football Club play. Whilst I am at the football I generally have to alternate frequently between sitting and standing, as generally too long in one position will increase my back and neck pain.”
40 On 13 December 2011 the plaintiff’s son, Nathan Berthelot, swore an affidavit. Nathan Berthelot made the following claims in support of his father’s claim against TAC, the first defendant:[22]
[22] PCB 46- 50
“6. Prior to the accident, I lived at home with my father.
7. I observed that my father was a relatively fit and active person. In the past, he had suffered some incidents of back pain. However, I do not recall him complaining of back pain prior to the accident and I observed that he was not generally limited in his ability to perform social, domestic or recreational activities, or to perform manual labour.
8. My father enjoyed a variety of hobbies prior to the accident. In his younger years, he played ten pin bowling competitively. After he stopped playing in competitions, he continued to play socially on a regularly basis. I went bowling with my father on a number of occasions. I observed that he was a skilled bowler and he enjoyed the sport. He did not appear to experience any difficulty playing this sport.
9. In addition to bowling, my father loved the outdoors. He regularly went out to a property in the country side to enjoy activities such as shooting and camping. On a number of occasions, I accompanied my father on these trips. I observed that he enjoyed these activities and did not appear to be physically limited in his ability to participate in them.
10. My father is a football fan and he enjoyed attending local football games regularly. This involves standing or sitting for extended periods of time.
11. My father enjoyed maintaining his car. He had enough skill and knowledge of cars to be able to perform any servicing tasks. He enjoyed this activity and was proud that he was able to look after his car.
..
23. My father is now limited in his ability to participate in his hobbies as a result of the ongoing back and neck symptoms. I have not seen him go bowling, shooting or camping since the accident.
..
26 After the accident, my father attempted to perform some restoration work on a car. However, he was unable to do much because of the ongoing symptoms in his back and neck. He had to sell the car because his physical limitations prevented him from restoring it.
…
32. I am aware that, in about early 2010, my father experienced further aggravation of his lower back pain in the course of his employment at 7 Steel. But he was already suffering from the limitations and problems mentioned above prior to this aggravation.
33. From my observations, the injuries to my father’s back and neck have affected his ability to participate in social and recreational activities such as bowling, outdoor activities, restoring cars and playing games with my (sic) grandchildren. The injuries have also affected his ability to perform physical labour. ”
41 Apart from the tendency to conflate the consequences of both injuries, taken at face value, the extracts from the plaintiff’s affidavit material, conveyed the message that the activities described had been curtailed by impairment of the plaintiff’s spine following the transport accident and the work-related injury. The son’s affidavit, on the other hand, attributed all of the alleged consequences to the transport accident.
42 The son also sought to corroborate additional evidence concerning his father’s mental response to further impairment of his neck and back without any reference at all to the plaintiff’s long-standing mental illness and its likely impact on his behaviour (“since the accident, my father appears to be suffering from symptoms of depression. He gets upset when he struggles to perform tasks and hobbies that he enjoyed before the accident” and “often becomes angry and frustrated by the physical limitations caused by the ongoing back and neck symptoms”[23]).
[23] PCB 49
43 It is well understood that histories repeated by doctors are not usually verbatim accounts of the various matters reported during assessment or treatment of a plaintiff. Medical reports, nonetheless, often record a plaintiff’s account of the impact of injury on a range of activities. This information, no doubt, contributes to the formulation of the opinions provided.
44 In this case, various medical reports made between 1998 and 2014 relevantly recorded the plaintiff’s domestic/recreational activities in the following terms:
· in a report dated 28 February 1998, addressed to the plaintiff’s solicitors, general surgeon, Mr Calvert recorded that before the plaintiff’s back injury in 1996 the plaintiff – “did his home gardening and other home chores but can now do very little. He also previously played sport, including volleyball, indoor cricket and football but is now completely unable to participate in these”.[24]
[24] WC 45
· Orthopaedic surgeon, Mr Scott also reported to the plaintiff’s solicitors, having taken a history on 5 October 1998 in which the plaintiff described helping – “out with the Glenroy Football Club’s under age teams in the Essendon District Competition and has participated as a time keeper and team manager and other duties from time to time. He has not played occasional social golf since about 1996 and he has not played beach volleyball since 1996”.[25]
[25] WC 74
· Neurosurgeon, Mr Maartens reported to the plaintiff’s solicitors. He took a history on 3 April 2009 in which, among other things, the plaintiff apparently reported that his lower back pain was his worst problem since the transport accident and, more specifically, that the plaintiff was no longer able – “to play sports with his children, unable to enjoy ten pin bowling as he did before and could no longer pursue a hobby working on cars. He helped out with activities and responsibilities around the house but any significant exertion in this respect caused him to suffer the following day”.[26]
[26] PCB 98
· Orthopaedic surgeon, Mr McArthur who reported to the insurance agent took a history on 1 August 2011 that – “Formerly Mr Berthelot enjoyed tenpin bowling but has not participated in this actually since March 2010. He enjoys watching football in a local competition and walks his dog”.[27]
[27] TAC 1, 75
· Occupational physician, Dr Le Leu, who reported to the insurance agent, took a history on 30 March 2012 that the plaintiff went to the football with friends and – “that is about all. He used to go ten-pin bowling and play golf with his son. He also used to take his grandchildren out. He can no longer undertake these activities because of pain”. Sleeping was terrible because of pain and the plaintiff’s sex life was especially terrible. [28]
· Psychiatrist, Dr Varma, who reported to the insurance agent, took a history on 1 May 2012 that the plaintiff – “used to play a bit of golf, did fishing and watch the footy, but now he cannot do much”.[29]
· Rehabilitation consultant, Mr Walsh who assessed the plaintiff at the request of his solicitors on 8 April 2014, took a history in which the plaintiff apparently indicated that – “prior to the traffic accident of 2007 he was working full-time with moderately heavy manual duties and whilst he experienced fluctuating lower back pain he was not using pain medication. Outside of work he enjoyed an active lifestyle which included; going out socially with a circle of friends, fishing, ten pin bowling and repairing cars. At home he was independent with all of the routine maintenance and was able to also assist his elderly parents with their heavier gardening duties.… As previously discussed, prior to the traffic accident Mr. Berthelot was involved in social and competition tenpin bowling, enjoyed dancing and social outings with friends, camping and shooting trips with friends and working on cars. At home he was independent with home maintenance, lawn mowing and also assisted his elderly parents with their heavier gardening duties”.[30]
[28] TAC 1, 110
[29] TAC 1, 99
[30] PCB 154-155
45 Counsel representing TAC took the plaintiff to particularly the reports of Mr Calvert and Mr Scott. Under cross-examination the plaintiff gave evidence which indicated that since the 1990s and the Henkel back injury:
· what he did with his life outside work had been seriously affected;[31]
[31] TN 53
· he had not returned to playing volleyball, indoor cricket or occasional social golf;[32]
· he had continued to attend football matches after the transport accident;[33]
· he had ceased playing ten pin bowling. [34]
[32] TN 71-72
[33] TN 75
[34] TN 72 and 92
46 When challenged about the inclusion of ten pin bowling in paragraph 25 of his first affidavit and paragraph 18 of both affidavits sworn on 7 May 2014, the plaintiff rejected the suggestion by counsel that he should have corrected this evidence. The plaintiff asserted his affidavits were truthful because, having been asked this, he instructed his solicitors about the activities he could no longer do.[35]
[35] TN 73-74 and 84-85
47 The plaintiff was next taken to paragraph 23 of his son’s affidavit. The plaintiff agreed that his son’s evidence would have been more complete had he also indicated that the plaintiff had not been bowling, camping or shooting for many years before the transport accident. [36]
[36] TN 75
48 Under cross-examination by counsel representing 7 Steel, the plaintiff made a number of further concessions about the limitations on his activities and pass-times before the transport accident. The plaintiff conceded his social life had been restricted up to the present time: “In some stages, yeah”[37]; impaired functioning of his back since the 1990s to the present time had precluded participation in social and recreational activities such as fixing cars, shooting and camping and recreational and social activities had been greatly restricted since the 1990s. The plaintiff’s answer when challenged about the accuracy of his assertion that he had regained much of his capacity for recreational activities before the transport accident, was non-responsive: “I was talking about the last few years in there, that one”.[38]
[37] TN 92
[38] TN 105-107
49 When given an opportunity to clarify his earlier evidence, the responses by the plaintiff during re-examination served to reinforce my view that, whilst there may have been some improvement in the back condition in the years following settlement of the Henkel proceeding, the plaintiff probably had not regained much of his earlier capacity for social and recreational activities before the transport accident. The questions and responses set out below illustrate this point:[39]
And it was put to you specifically that you’ve had restrictions since the 1990s and those have remained pretty much exactly the same, on your activities of daily living, your daily life, since then. What do you say as to whether or not you were regaining some capacity for activities of daily living in 05 and 06? – – – I’d say a little bit, like I’d be able to take me dogs – not as much as I’d like to, but just enough to give them a little bit of a walk. I’d go to the football with the friends, I’d go to the RSL, have a couple of drinks with them.
How did that situation compare to the way the things were in the 1990s at their worst? – – – I wasn’t doing any of that.
[39] TN 126-127
50 I found the plaintiff’s explanation for the contradictions in the evidence disingenuous. In these circumstances, the corroborative value of the son’s evidence was negligible and, depending on the histories recorded, some opinions expressed by doctors about the disabling effect of injury suffered in the transport accident and/or of the work-related injury, were less helpful than they might otherwise have been.
51 Of necessity, I have not relied on the plaintiff’s subjective account of pain and disability. Rather I have looked to other evidence for independent corroboration.
Injury to the spine prior to the transport accident
52 In his first affidavit, the plaintiff made a number of claims in respect to his earlier mental health and lower back problems. Firstly, the plaintiff deposed that bipolar disorder diagnosed in or about 1997 was managed “fairly well” with medication.[40]
[40] PCB 12
53 Secondly, the plaintiff described multiple episodes of injury to his lower back in the course of his earlier employment between about 1992 and December 1996.[41] The plaintiff, however, deposed that he had made a good recovery from these episodes of lower back injury, such that, prior to the transport accident he experienced only: “some lower back pain”, which had not been “severe” and had not interfered significantly with his work or lifestyle.[42]
[41] PCB 12-13
[42] PCB 14
54 The identical affidavits sworn on 7 May 2014 in each leave application, relevantly included the following matters:[43]
[43] PCB 34-35
“3. Dr Tunaley undertook treatment for the injuries I sustained in the 1990’s. The back and neck injuries I sustained in the 1990’s were significant and required a great deal of treatment, however in the years immediately preceding 2007 I had become substantially better, required significantly less treatment, regained much of my capacity for recreational activities and activities of daily living, and had regained much of my capacity for employment.
4. Dr Tunaley was monitoring me throughout this period and I understand that in 2004 he indicated I was fit for a variety of full-time manual occupations, with some restrictions, and in 2006 he in fact did my pre-employment medical examination when I started my employment with SIM Steel. At that point I understand he cleared me for full-time duties with SIM steel.
5. After commencing work with SIM Steel I was regularly performing heavy manual work and I was coping well with this work. I was not requiring regular analgesic medication and I was not requiring any significant time off from work.
6. Following the 2007 transport accident I had the onset of constant, frequently severe, pain in my neck and back often referred into my shoulders. After the transport accident there was a very significant change in my condition as compared to the years immediately prior to the transport accident.
7. Following the transport accident I had constant pain (which pain has never abated), the ongoing need for daily analgesic medication, difficulty performing my work duties, and impaired capacity for activities of daily living, impaired sleep, and impairment upon my recreational activities. These impairments have continued through to the present day and, I believe, are permanent.”
55 For the reasons discussed below, I concluded the plaintiff’s affidavit evidence had not adequately explained the extent of the impact of the Henkel back injury and mental instability on his activities and enjoyment of life between settlement of the Henkel proceeding and the transport accident.
56 It is convenient to commence with discussion of the radiological and medical evidence obtained before the transport accident in respect to the earlier back injury and the diagnoses made.
57 General practitioner, Dr Tunaley has treated the plaintiff since 1992. Reports were tendered which addressed the plaintiff’s back condition both before and since the transport accident. Five reports predated the transport accident. Two very short reports from 1992 and 1993 indicated that the plaintiff presented on medical examination with low back pain. The remaining reports comprised report dated 12 May 1997, addressed to WorkCover, report dated 23 June 1997, addressed to the WorkCover Conciliation Service and, lastly, report dated 17 September 1998, addressed to the plaintiff’s solicitors.[44]
[44] TAC 1, 19-24 and WC 16-18
58 In these reports, Dr Tunaley relevantly recorded the following matters:
· between 9 December 1993 and 28 May 1996 the plaintiff attended for treatment of either thoracic or lumbar spine pain in association with his employment activities. Neck pain was not an issue;
· on 28 May 1996 the plaintiff developed severe pain following a lifting incident at work. Thereafter the plaintiff was treated with physiotherapy and medication and on 15 July 1996 an x-ray report revealed L4 spondylosis;
· having returned to work during 1996, the plaintiff commenced wearing a sacro cinch provided by the physiotherapist to support his back;
· on 12 December 1996 the plaintiff reported a further lifting incident accompanied by the development of pain in his low back for which the plaintiff was again prescribed medication and referred to physiotherapy. Under cross-examination the plaintiff agreed that injury suffered in 1996 had caused him significant problems;[45]
[45] TN 45
· on 24 February 1997 the plaintiff reported that he had been retrenched following an incident during which police searching for stolen goods raided his house on 17 February 1997. Under cross-examination, the plaintiff agreed he had suffered “continual” lower back pain until he was retrenched and had required the sacro cinch to cope with his duties;[46]
[46] TN 47-48
· in February 1997 the plaintiff reported increased tightness and pain in the entire spine and mild depression;
· examination apparently revealed tenderness over the entire thoracic spine and more so over the lumbar spine with reduction in movements in all directions and in straight leg raising;
· the plaintiff was referred to orthopaedic surgeon, Mr Hadley and to a consultant psychiatrist for treatment of increasing pain and depression respectively;
· as a result of the plaintiff’s employment with Henkel, Dr Tunaley diagnosed chronic strain in the thoracic and lumbar regions and aggravation of the L4-L5 spondylolisthesis;
· Dr Tunaley assessed the plaintiff fit for work where he was able to keep his back straight and avoid heavy lifting over 10 kilograms. Under cross-examination the plaintiff agreed that he had been given a certificate which required that he avoid repeated bending and lifting and restricted lifting to no more than 10 kilograms;[47]
· in May 1997 the general practitioner considered the plaintiff partially incapacitated for work where lifting was restricted to no more than 15 kilograms. He had recommended ongoing physiotherapy and hydrotherapy;
· when re-examined on 26 August 1998, whilst noting improvement in the plaintiff’s movements, the general practitioner, nonetheless believed chronic low back pain would persist for the foreseeable future.
[47] TN 48
59 Mr Hadley provided two reports, having examined the plaintiff on a number of occasions between 11 March 1997 and 12 September 1997.[48] In the first of these the specialist relevantly recorded the following matters:
[48] TAC 1, 1- 6 and WC 35-37
· the plaintiff reported low back and upper back pain in association with work-related lifting incidents;
· the plaintiff had worn a lumbar brace from time to time in the nine months preceding the March 1997 examination;
· having reviewed x-rays of the plaintiff’s lumbosacral spine obtained on 15 July 1996, Mr Hadley indicated his agreement with the radiologist’s report. Mr Hadley explained that these x-rays had shown - “a right and left pars defect at L4 with slight spondylolisthesis of L4/5. The left transverse process of L5 was enlarged forming an accessory joint with the sacrum. The L5/S1 disc was narrow from development”;
· Mr Hadley ordered a CT scan of the plaintiff’s lumbar spine to investigate whether the plaintiff had also suffered a prolapse of the lumbar disc. On 11 March 1997, the results of this scan confirmed the bilateral pars defects of the L4 and partial sacralisation of the L5, without also revealing evidence of focal disc prolapse or of neurological impingement. The scan report further identified minor degenerative facet joint disease;
· following re-examination on 16 June 1997 Mr Hadley noted the plaintiff had benefited from physiotherapy three times weekly with Mr McCormack since injury to his low back in 1992 and from hydrotherapy twice weekly in the two months preceding the examination. Under cross-examination, when faced with the proposition that he regularly attended physiotherapy with Mr McCormack throughout the 1990s, the plaintiff said he only had physiotherapy when his lower back condition flared up. Mr McCormack never reported on this early period of treatment. However, allowing for the fluctuations in the plaintiff’s condition I think it unlikely that physiotherapy was required three times per week; [49]
[49] TN 50
· on 16 June 1997 the plaintiff reported that cold weather exacerbated pain and he complained that pain spread down the back of his left thigh and leg to the ankle and into the back of his right thigh;
· on 16 June 1997, examination had revealed ongoing restrictions in flexion, extension and right and left lateral flexion and rotation in the thoracolumbar spine;
· Mr Hadley diagnosed chronic strain in the attachment muscles to the plaintiff’s lumbar and thoracic regions due to injury to the lumbar discs and aggravation of L4-5 spondylolisthensis;
· the plaintiff was only fit for light work where he could maintain good back posture and avoid frequent forward bending and heavy lifting.
60 Copies of the radiological reports were not tendered. However, after these had been located by the second defendant during the course of the hearing, it was common ground that Mr Hadley’s report accorded with the results reported by the radiologists.
61 Treating physiotherapist, Mr McCormack provided only one report dated 25 March 2010. This was addressed to the TAC. As mentioned, this report did not discuss earlier back injury or treatment administered prior to the plaintiff’s attendance for physiotherapy treatment over two periods between 19 August 2009 and 13 November 2009 and between 4 March 2010 and 15 March 2010.[50] I will discuss this report in due course.
[50] PCB 92-93
62 Orthopaedic surgeon, Mr Shannon examined the plaintiff both before and subsequent to the transport accident. He first examined the plaintiff at the request of the Henkel solicitors on 19 January 1998.[51] In addition to obtaining some history of episodes of back injury Mr Shannon relevantly recorded the following matters:
[51] TAC 1, 34-36
· the plaintiff reported that whilst moving 20 litre drums in December 1996 he felt his back “go” and had pain across the low back radiating to the buttocks and upper thighs and also into the interscapular region;
· his back had not improved and had worsened since he stopped work in February 1997;
· the plaintiff had difficulty sleeping;
· examination revealed thoracolumbar movements limited by a third, straight leg raising was to 20° and hip flexion to 40° but straight leg raising had improved to about 80° in the sitting position;
· x-rays and CT scans had revealed pre-existing spondylosis with early spondylolisthesis, as well as a congenital abnormality at the lumbosacral junction, conditions Mr Shannon said pre-existed the plaintiff’s employment, presumably with Henkel. There was no evidence of major disc prolapse, despite evidence of degeneration and some minor bulging at the the L4/5 level;
· employment had aggravated these conditions from 1992. In his most recent reports, Mr Shannon relevantly characterised the plaintiff’s condition before the transport accident as mechanical back pain with disc degeneration and spondylolisthesis;[52]
· the plaintiff was unfit for his former occupation or work involving repeated bending and heavy lifting. He was capable of light work subject to these restrictions
[52] TAC 1, 37-51
63 Orthopaedic surgeon, Mr Menelaus also appears to have been retained by the Henkel solicitors. His report dated 11 February 1998 relevantly indicated the following matters:[53]
[53] TAC 1, 7-10
· the plaintiff reported sleepless nights with backache and neck ache, the latter occurring after the most recent incident of workplace injury to his back (which had included high back pain after the plaintiff bent to pick up a hose at work and sneezed). Whilst there had been no radiological investigation of the cervical spine, this report recorded some early complaint of upper back and neck pain;
· examination had revealed discomfort on the right side of the lower back at extremes of rotation and lateral flexion to the right but movements were full in range, straight leg raising of each leg produce pain in the back at approximately 20 degrees;
· that Mr Menelaus probably viewed the radiological material, in as much as he noted, among other things, spondylolisthesis at the L4-5 level with some anterior dipping at the margins of the L4, which he thought suggested degenerative change at this level as well as some low thoracic degenerative change. So far as the CT scans were concerned Mr Menelaus also noted the bilateral pars defects at L4, without evidence of focal disc prolapse or neurological impingement;
· Mr Menelaus was not able to determine the precise cause of pain the plaintiff said passed to his buttocks. He, however, considered that the work-related episodes described by the plaintiff had likely aggravated pre-existing degenerative change at the L4-5 level and, in the doctor’s words, the plaintiff was: “rendered more like for such damage because of the pre-existing spondylolisthesis and accompanying degenerative disease at this level”;
· the pre-existing spondylolisthesis was long-standing and not produced by employment;
· the plaintiff was fit for his former overseeing duties with Henkel but not for employment involving lifting or repetitive bending.
64 As earlier mentioned, on 24 February 1998, orthopaedic surgeon, Mr Calvert assessed the plaintiff at the request of his solicitors. This surgeon took a detailed history of various episodes of low back and mid spine pain occurring in association with the plaintiff’s work between 1992 and 12 December 1996. Mr Calvert either viewed the existing radiology or the radiologist’s reports or both.[54] His report relevantly recorded the following matters:
[54] WC 44-48
· when the plaintiff ceased work in 1997 he was experiencing: “constant back pain in the thoraco-lumbar region, worse on the left side, which extended into both buttocks, more on the left, and down both thighs. This was worse when sitting and standing, and was aggravated by physical activity. He often had “pins and needles” in both legs which occurred mostly when in bed at night. However, after stopping work and despite treatment with physiotherapy and hydrotherapy, his symptoms have become worse and he remains off work. His pain is worse with weather changes and when more severe the pain extends up his back and causes his neck to be tight and painful. At night he usually sleeps poorly, and car driving is difficult”;
· on examination, among other things, the plaintiff complained of marked midline tenderness of his lower lumbar spine, bilateral tenderness in the sacro-iliac region and tenderness posteriorly over the lower half of his neck. Back flexion was limited to 40° and extension to 10°. Lateral flexion was limited to 20° on the right and 10° on the left. Rotation was limited to 20 ° on each side. Straight leg raising was restricted to 30° on the right and 10° on the left. Mr Calvert apparently also found some impaired sensation over area supplied by the left L5 nerve root and the left S1 nerve root to a lesser degree;
· Mr Calvert attributed neck pain and stiffness to secondary spasm of neck muscles caused by muscle spasm associated with lower back pain;
· Mr Calvert diagnosed chronic muscular-ligamentous strain of the lower back, with destabilisation of L4-5 spondylolisthesis (with anterior shift of L4 vertebral body on L5). He also felt that the back strain could lead to lumbar disc degeneration. Notably, this specialist considered the plaintiff’s prognosis poor because, in his experience, once destabilised the condition (presumably the spondylolisthesis) nearly always remained permanently symptomatic, with the possibility of future deterioration;
· whilst the plaintiff might cope with some part-time work as an overseer with Henkel, he was not fit to engage in the full range of his pre-accident employment as a reactor operator or in the modified duties performed before the plaintiff ceased work, the latter due to a reported worsening of his condition.
65 The last of Mr Hadley’s reports, addressed to the plaintiff’s solicitors, was dated 28 September 1998.[55] This report acknowledged receipt of a copy of Mr Calvert’s report and summarised the treatment regime in the period up until Mr Hadley re-examined the plaintiff on 24 September 1998 at the request of the plaintiff’s solicitors. The report relevantly recorded the following matters:
[55] TAC 1, 4-6
· the significant impact on the plaintiff’s life and activities of the bipolar disorder diagnosed in late 1997;
· when examined on 12 September 1997, more than a year earlier, Mr Hadley noted the movements of the plaintiff’s back had lacked about two thirds of their normal range;
· in September 1998 the plaintiff complained of pain in his low back all the time which varied in degree and spread down the back of both thighs as well is recurrent pain in the upper back and neck;
· examination on 24 September 1998 revealed, among other things, slight tenderness over the cervical and thoracic regions of the spine with more tenderness over the lumbar region. On this occasion, Mr Hadley recorded restricted movement in cervical flexion, extension and rotation and in thoracolumbar flexion to 50 °, extension to 10 ° and right and left lateral flexion and rotation all to 20 °. Straight leg raising on both sides was 60°;
· a diagnosis of chronic strain in the attachment muscles to the lumbar, thoracic and cervical spine regions from injury to the lumbar discs and from aggravation to L4/5 spondylolisthesis with a prognosis that the condition of the plaintiff’s back and neck would remain much the same;
· confirmation that Mr Hadley did not consider the plaintiff fit to engage in his pre-accident employment as a reactor operator.
66 On 5 October 1998, orthopaedic surgeon, Mr Scott examined the plaintiff at the request of his solicitors.[56] This report relevantly recorded the history of work-related episodes involving mainly low back pain and recorded the following matters:
[56] TAC 1, 11-18
· the plaintiff reported lumbo-sacral backache most of the time worsened by activity, repeated bending or heavy lifting and if he had to sweep or clean his house;
· the plaintiff reported restrictions on the amount of shopping he could carry and on the time over which he was able to drive;
· the plaintiff reported occasional pain travelling from his back into his thighs and from his back up to between his shoulder blades and into his neck;
· in contrast to Mr Hadley’s findings some two weeks earlier, on this occasion, examination revealed a full range of painless active and passive movements of the cervical spine;
· examination further revealed an absence of tenderness, a full range of painless active and passive movements of shoulder, elbow and wrist joints, moderate reduction in active and passive movements of the back in all directions with tenderness at the extreme forward flexion in the lumbo-sacral junction area, reduced straight leg raising without evidence of any sciatic nerve irritation, painless active and passive movements of hip knee and ankle joints and the absence of any neurological abnormalities;
· Mr Scott’s acceptance of the radiologist’s report of the results of the CT scan investigation obtained on 11 March 1997, which Mr Scott considered contained no convincing evidence of spondylolisthesis;
· a diagnosis of chronic low back strain or muscular-ligamentous injury together with aggravation of underlying, pre-existing degenerative changes at the L4-5 level but without evidence of any focal disc prolapse or evidence of any frank spondylolisthesis. Mr Scott obviously considered the possibility of worsening symptoms due to advancement of degenerative changes at the L4-5 level and slipping resulting in spondylolisthesis in the future. However, I have preferred the evidence of Dr Tunaley, Mr Hadley, Mr Shannon, Mr Calvert and Mr Menelaus. Unlike Mr Scott, they had the advantage of also considering the x-rays and/or the accompanying radiologist report when they concluded there was evidence of spondylolisthesis;
· Mr Scott considered the plaintiff only fit for light work.
67 The histories obtained by psychiatrist, Dr Sime, in 1998 are relevant to the extent that they paint a picture of a man seriously disabled by back pain. In reports dated 29 May 1998 and 9 October 1998 addressed to the plaintiff’s solicitors, Dr Sime recorded the following matters:[57]
[57] WC 53-70
· an inability to help around the house other than “a bit of cleaning” and helping his wife with the cooking and a “bit of shopping”;
· an inability to garden;
· tolerances for driving of about half an hour and for walking of about 15 to 20 minutes. Under cross-examination, however, the plaintiff said that over the years his tolerances for standing and walking had fluctuated and currently, depending on his back condition, sometimes this was 15 to 20 minutes or more;[58]
[58] TN 103
· a loss of involvement in sporting activities: “In his younger days he played football for Glenroy. He was also team manager before he stopped working. He is still involved but not much now. He also used to play volleyball socially but he had to stop this”;
· problems with sex: “with his back playing up. This has been a problem for some years”;
· needing to lie on the floor to relieve back pain. Under cross-examination, however, the plaintiff agreed that back pain had improved such that he no longer needed to do this;[59]
· rarely socialising: “perhaps once or twice a year. He watches the children playing football and he sometimes does a bit of time keeping”.
[59] TN 103
Pre-existing psychiatric condition
68 The materials tendered show that within months of retrenchment from his employment with Henkel the plaintiff’s behaviour deteriorated. He was admitted to Royal Park for psychiatric treatment. The diagnosis on discharge on 24 November 1997 was Bipolar affective disorder.[60] There were further admissions in August 2002 and May 2003. Between 23 August 2002 and 19 August 2005, the plaintiff was subject to Community Treatment Orders under the Mental Health Act 1986.[61]
[60] TAC 3, Tab 1
[61] TAC 3, Tab 5, 7 and 8
69 Under cross-examination, the plaintiff was clearly reluctant to accept the accuracy of hospital records made during admissions to manage psychotic and aggressive behaviour, where, among other things, these records indicated that he had hit his then wife or threatened her with violence or terrorised neighbours.[62] For instance, notes made after admission for treatment in May 2003 recorded that the plaintiff had threatened to kill his ex-wife and, following a police siege the plaintiff was found with a sawn off shotgun and ammunition in his possession.[63]
[62] TN 57-61
[63] TAC 3, Tab 6
70 The impression I formed was that his responses to questions about his behaviour demonstrated some selectivity on the plaintiff’s part, rather than the effects of the passage of time or of the plaintiff’s manic depressive disorder on his capacity to recall events occurring up to 17 years earlier.
71 I infer from the evidence as a whole that, following settlement of the Henkel proceeding, from time to time there were periods of instability in the plaintiff’s mental health, which probably contributed to incapacity for work and impacted on the plaintiff’s domestic, social and personal life before and since the transport accident. This is not to deny that with regular attendances on the plaintiff’s general practitioner, psychiatric treatment and medication, the Bipolar affective disorder were probably currently well-managed.
Employment between 2002 and the transport accident
72 The plaintiff first returned to work following settlement of the Henkel proceeding during 2002.
73 In his first affidavit, the plaintiff, among other things deposed that: “Though some of the pain from this injury has remained, through rehabilitation I have been able to manage it and it has not interfered significantly with my subsequent work or lifestyle.”[64] In his second affidavit, sworn more than two years later, the plaintiff added: “As noted in paragraph 3 of my first affidavit, this lower back injury did cause me ongoing concern right up to the date of the car crash. However, I had not required analgesic medication for this lower back condition for some years prior to the car crash and I had managed to return to a relatively heavy full-time job, albeit with some restrictions.”[65]
[64] PCB 12
[65] PCB 19
74 The general practitioner’s records contain correspondence and a medical certificate, dated 20 June 2002 and 17 July 2002 respectively. Both were referable to the plaintiff’s employment as a picker and packer with the Beasley Liquor Group in 2002.[66]
[66] TAC 1, 33.1-2
75 These documents, among other things, showed that in mid-2002:
· the plaintiff continued to report significant back pain as a consequence of the earlier back injury. This pain involved both the thoracic and lumbar spine – “the entire thoraco lumbar spine”;
· having previously taken Panadeine Forte, the plaintiff reported using marijuana as a pain relief substitute for strong analgesic medication;
· the treating general practitioner believed that back pain would continue. He had advised the plaintiff to try and get on with his life;
· the general practitioner believed the plaintiff to be permanently partially incapacitated for work due to thoraco-lumbar back pain and that ongoing restrictions were required – “No repeated bending, i.e. every 10 min (eg 6 x an hour) Can lift and carry up to 15kg between waist and chest level. Can lift from floor level occasionally up to 10 kg”.
76 A Centrelink medical certificate and an entry in the general practitioner’s clinical notes, both dated 22 July 2002, [67] indicated that on the same date the plaintiff was treated for back pain and prescribed the painkilling medication, Vioxx. This certificate, however, implicated neck, thoracic and lumbar pain. The plaintiff was certified unfit for work between 17 July 2002 and 9 October 2002 with long-term restrictions imposed on “HEAVY LIFTING REPEATEDLY OVER 10 KG. NO REPEATED BENDING AND TWISTING”.
[67] TAC 1, 33.3 and TAC 5, 2
77 I infer from this evidence and the evidence of mental instability during 2002 and 2003, that the plaintiff’s employment in 2002 as a picker and packer was likely significantly affected by both his back condition and periods of mental instability.
78 It appears from facsimile correspondence between the general practitioner and an Employment Case Manager, whose company provided the plaintiff with Jobseeking Assistance that, in July 2004, the doctor considered the plaintiff fit for full-time employment not involving repeated bending or lifting or pushing weights exceeding 15 kg.[68]
[68] Exhibit P3
79 Prior to the transport accident, the clinical records tendered record only one further attendance on 9 August 2004 in the treatment of lower back pain (“No leg pain”[69]). The record implicated repeated bending and heavy lifting. The clinical note made on 22 April 2005 also recorded the discontinuance of the prescription of Vioxx. There was no further record of prescription of pain killing or anti-inflammatory medication before the transport accident.[70]
[69] TAC 5, 3
[70] TAC 5, 3
80 An entry in the clinical records made on 11 September 2006, suggests that the plaintiff was employed as a storeman with Ernest Hillier chocolates for only five months before he sought employment with Sim Steel.[71]
[71] TAC 5, 3
81 On the same date, another doctor from the clinic, Dr Henderson, cleared the plaintiff to work with Sim Steel, subject to restrictions on manual handling of weights in excess of 20 kilograms.[72] The Health Statement completed by the plaintiff, again on 11 September 2006, also contemplated ongoing restriction on repeated bending.[73]
[72] PCB 3
[73] TAC1, 33.5
82 From about September 2006 the plaintiff was employed by Sim Steel as a storeman and forklift driver. The plaintiff’s evidence was that he picked orders and worked in customer service. [74] In his first affidavit the plaintiff deposed that lifting was limited to 15 kg weights. In his second affidavit, the plaintiff deposed that by reason of his lower back injury there were restrictions on repetitive bending or lifting and on lifting weights over 15 to 20 kg.[75]
[74] PCB 15
[75] PCB 20
83 During re-examination the plaintiff told the Court that his work as a storeman with Sim Steel was, nonetheless, very heavy and involved lifting weights of up to 20 kg (albeit with assistance of other employees and the use of a crane), as well as frequent bending and lifting throughout the day. According to the plaintiff, he had coped with this work (“Yeah, not too bad”[76]) without needing time off work.
[76] TN 118
84 Notwithstanding the differences in the affidavit evidence, at hearing the plaintiff confirmed that the restrictions imposed, particularly on lifting, had not varied from when he was retrenched by Henkel to the date of the transport accident. This evidence provided some basis for measuring any further loss of physical capacity for employment due to further impairment.[77]
[77] TN 55
Medication required immediately before the transport accident
85 Without identifying the medication or the quantity used, the plaintiff further indicated at hearing that he had taken medication for back pain, albeit less medication than now (“Now and again”[78] and “Just every now and again when the back would play up, I’d take a tablet, but after the accident, it was every day”[79]). The analgesic medication was additional to medication taken to control the symptoms of Bipolar affective disorder.
[78] TN 119
[79] TN 120
86 Under cross-examination the plaintiff agreed he had regularly used marijuana. However, the plaintiff claimed he ceased growing and using marijuana from about 2002/2003, on advice from his doctor that this drug was not good for his mental health condition.[80]
[80] TN 70-71
87 The documentary evidence, however, indicated to the contrary. This evidence suggested that the plaintiff had continued to use marijuana after Dr Tunaley reported in 2002 that this drug was used by the plaintiff as a pain relief substitute. For instance, the progress notes made during a period of relapse in the plaintiff’s Bipolar affective disorder and readmission to hospital on 1 May 2003, recorded regular use of marijuana.[81] The clinical records of Dr Tunaley further recorded that on 10 September 2008, during an attendance for treatment of Bipolar affective disorder, the plaintiff reported that he had not used marijuana (“THC”) for two months. He and the doctor apparently discussed “addiction”, which I understood referenced the plaintiff’s ongoing use of this drug. [82]
[81] TAC 3, Tab 4
[82] TAC 5, 14-15
88 Under cross-examination, the plaintiff was questioned about a detailed report prepared by consultant psychiatrist, Dr Daniels. He assessed the plaintiff on 2 August 2011 at the request of an insurer.[83] The plaintiff confirmed the accuracy of numerous factual matters recorded in this report, including a history of convictions for drug cultivation and for property damage, the latter in 2011 and a substance use history which involved drinking two cans of alcohol on occasion while watching football and smoking 12 cigarettes per day.
[83] TAC 1, 88-96
89 The plaintiff, nonetheless, challenged the accuracy of the substance use history recorded for marijuana (“He uses marijuana approximately once a month”[84]) stating: “Yeah, I told him that, but I didn’t say at that time, I said I used to smoke it once a month.”[85]
[84] TAC 1, 92
[85] TN 89
90 The only other comment on substance abuse contained in the report failed to shed any further light on whether the plaintiff had ceased using marijuana: “Mr Berthelot has a preexisting Bipolar Disorder. The condition appears to have been complicated in the past by substance abuse (sic).”[86]
[86] TAC 1, 94
91 Based on the evidence summarised, I could not be satisfied by the plaintiff’s evidence alone that the use of the drug, marijuana as a substitute for strong analgesic medication had ceased in 2002/2003 or before the transport accident. Accordingly, I could not be satisfied that the limited amount of medication sought and prescribed between 2002 and the transport accident provided a reliable indicator of the likely level and frequency of back pain immediately before the transport accident.[87]
[87] PCB 14
92 In my view, in this case, the likely ongoing limitations affecting the plaintiff’s social and recreational activities, his acknowledged walking, sitting and standing tolerances and his physical work capacity represented more reliable measures of the level of disability.
The extent of impairment of the plaintiff’s spine prior to the transport accident
93 The medical and radiological evidence, the Henkel proceeding filed in October 1997 and the plaintiff’s responses to cross-examination, among other things, established the following matters:
· complaint of and treatment for cervical, thoracic and lumbar spine pain and disability in association with the Henkel employment, prior to retrenchment in early 1997;
· diagnoses involving likely soft tissue injury with aggravation of degenerative changes in the thoracic and lumbar spine and likely aggravation of pre-existing spondylolisthesis;
· there was no radiological investigation of the cervical spine. Radiological evidence otherwise indicated pre-existing degenerative changes at the L4-5 level and left pars defects at the L4 level, with evidence of slippage, namely spondylolisthesis at the L4-5 level and partial sacralisation of L5;
· evidence of pain and disability due to ongoing impairment of the plaintiff’s spine. Under cross-examination the plaintiff agreed that when he ceased work with Henkel in 1997 he was suffering constant pain in his low back, worse on the left side, he often experienced pins and needles in his legs and his condition had not been improved by physiotherapy and hydrotherapy.[88]
[88] TN 52
· in January 1998 the plaintiff probably had, as recorded, informed orthopaedic surgeon, Mr Shannon that his back was not improved and, if anything, his back had tightened up and become worse since stopping work;[89]
[89] TN 56
· since the 1990s there had been baseline pain, which over the years, from time to time, had flared and settled to the same level;[90]
[90] TN 93
· limited attendances on the general practitioner for treatment. Whilst the plaintiff relied on this factor and the absence of prescribed analgesia, as mentioned, likeIy use of marijuana over many years distorted the picture so far as any assessment of the need for pain relief was concerned. However, I infer from the concession made concerning the baseline level of pain, which apparently flared and settled over the years, that pain relief additional to any prescribed medication probably had been necessary;
· likely permanent restrictions on heavy lifting and on repetitive bending. These restrictions were unchanged at the time of the transport accident. In September 2006 the plaintiff was cleared to return to full-time, albeit restricted employment where manual handling was limited to 20kg. In the same month the plaintiff commenced employment with 7 Steel’s predecessor and worked full-time restricted employment as a storeman until the transport accident;[91]
[91] TN 54
· periods of mental instability characterised by aggressive behaviour due to Bipolar affective disorder, which probably contributed to periods of incapacity for work and adversely impacted on the plaintiff’s personal life;
· earlier reports of sleep disrupted by back pain;
· earlier reports of neck and back ache during cold weather;
· following the Henkel injury, depending on his back condition, the plaintiff’s sitting, standing and walking tolerances fluctuated from a baseline of approximately 20 to 30 minutes each;
· the back injury had seriously affected the plaintiff’s life outside work.[92] He either could no longer engage in or claimed to be restricted in the performance of a range of social, recreational and domestic activities. For instance, the plaintiff no longer went shooting or camping or played ten pin bowling, volleyball, indoor cricket, football or occasional golf. The plaintiff could do very little home gardening (under cross-examination this was said to have involved mowing the lawn[93]) or other home chores (lumbo-sacral pain was said to be much worse if the plaintiff had to sweep or clean the house[94]), he could sometimes wash the car[95] and driving was said to be difficult. In 1998 the plaintiff apparently indicated to two specialists, Mr Menelaus and Dr Sime that in the past couple of years his back condition had caused problems with sexual activity;[96]
· by 2005/2006 the plaintiff could walk his dogs “a little bit” and go to the football and the RSL club with friends.
[92] TN 53
[93] TN 52
[94] TAC 1, 13
[95] TAC 1, 8
[96] TAC 1, 8 and WC 57
The transport accident
94 The plaintiff replied in the affirmative when asked whether he was working on the date of the transport accident. This was immediately corrected to: “annual leave”.[97]
[97] TN 57
95 However, whilst the plaintiff indicated he could not recall this, I was satisfied from the evidence summarised below that, the plaintiff’s mental state had deteriorated and, in the period immediately before and after the transport accident, a significant relapse in the plaintiff’s mental health had contributed to time off work.
96 On 10 August 2007, the plaintiff’s wife obtained an interim intervention order.[98] Her complaint outlined threats made to harm her and a puppy and to cause property damage. The complaint also referred to earlier intervention orders involving threats made with a gun or knife. The interim order, due to expire on the return date on 31 August 2007, among other things, prohibited the plaintiff from harassing or threatening his wife.
[98] TAC 3, Tab 10
97 Without revisiting in detail the cross-examination relating to the circumstances under which a further intervention order was made, this was another occasion when the plaintiff resisted acknowledging his past behaviour and the impact of his mental health condition on his employment and personal life immediately before and at the date of the transport accident.
98 The plaintiff could not recall having attended his general practitioner on the date of the transport accident. The clinical records, nonetheless, confirmed contact between the North West Area Mental Health Service, the plaintiff’s ex-wife and the clinic as well as an attendance by the plaintiff for treatment of Bipolar affective disorder on 10 August 2007. The notes made recorded progressive relapse into mania, sleep deprivation for four days, significant weight loss over a 3 month period and the plaintiff’s concern that he would not be able to manage symptoms of his disorder (anger) in the workplace.[99]
[99] TAC 5, Tab 12
99 On this occasion, the doctor changed the medication prescribed to aid sleep (prescription of Stilnox was discontinued and Temaze was prescribed). He certified the plaintiff unfit for work for 7 days.[100] The record made, however, further indicated that the doctor anticipated more time off work due to the plaintiff’s mental health problems.
[100] TAC 1, 33.8
100 As we now know, the plaintiff was injured in the transport accident on the same day. Following the transport accident, certificates of incapacity were issued for various periods between 10 August 2007 and 10 December 2007, for injury to the plaintiff’s neck, thoracic and lumbar spine and for various periods between 12 October 2007 and 29 March 2010, for thoracic and lumbar spine symptoms only.[101] This evidence, the clinical notes kept during 2008 and 2009 and medical reports to which I refer shortly, suggest that symptoms of neck injury suffered as a result of the transport accident, if not resolved, were likely minimal before the work-related injury.
[101] TAC 4
101 In his first affidavit, the plaintiff deposed that following the transport accident he was immediately aware of pain around his rib cage and the next morning, on 11 August 2007, he woke with severe pain in his back, neck and shoulders and pain radiating around his rib cage.
102 The plaintiff apparently attended the Austin Hospital and was sent to the Mills Park Medical Centre and later sent for x-ray. The latter, the plaintiff deposed had only shown bruising of the ribs. No records, clinical or radiological, were tendered. However, when opening the plaintiff’s case, counsel informed the Court that an entry in this medical clinic’s records relevantly recorded left-sided chest, neck and shoulder/s pain.[102]
[102] TN 24
103 I have already summarised the most recent affidavit material sworn in May 2014 in which the plaintiff deposed to a very significant increase in pain (“constant pain”) in his neck and back, often referred into his shoulders, following the transport accident.[103]
197 Having reviewed this doctor’s evidence including the clinical notes, I was satisfied that the final report plainly revealed an intention on the part of Dr Tunaley to draw a line between the earlier soft tissue injury he believed was sustained in the transport accident and the effects of ongoing injuries, which at that stage still involved attendances for treatment of back and neck pain. As mentioned, in February 2009 he considered the plaintiff ready to return to his pre-injury employment. Irrespective of whether this referenced employment performed before or after the transport accident, at the very least the evidence indicated that before the work-related injury the plaintiff had a capacity for full-time employment subject to the same restrictions.
198 Unsurprisingly, TAC sought to rely on this report from a treating doctor, very well acquainted with the plaintiff’s medical and work history, as well as the evidence of Mr Shannon, the only other doctor to assess the plaintiff before and after the transport accident and the work-related injury.[187] Both doctors were well placed to assess the probable level of impairment of the plaintiff’s back had the work-related injury not occurred. In a case where some specialists examined the plaintiff for the first time in 2011, I considered this an appropriate basis for preferring, as I have, the evidence of Dr Tunaley and Mr Shannon regarding the likely limited role of the transport accident.
[187] TN 200-202
199 The second defendant also sought to rely on Dr Tunaley’s report, because the treating doctor had not indicated that the plaintiff continued to be incapacitated by work-related injury and he had specifically advised that the plaintiff was fit to perform his pre-injury duties.[188] On behalf 7 Steel, it was submitted that the pre-injury duties to which this report referred were those performed by the plaintiff prior to the transport accident. However, I was not satisfied from reading the final report that Dr Tunaley also considered the plaintiff fully recovered from the effects of the work-related aggravation injury and capable of returning to the pre-injury restricted employment.
[188] TN 240-244
200 Finally, the report of rehabilitation consultant, Mr Walsh was tendered on behalf of the plaintiff.[189] He assessed the plaintiff at the request of his solicitors on 8 April 2014. Notably, on this occasion, the tolerances reported had increased. For instance, the plaintiff reported he could now sit in an upright chair for one hour and his standing and walking tolerances had increased to 45 minutes before he experienced back pain. This evidence is difficult to reconcile with the report made to Mr Shannon a week later that the plaintiff’s walking capacity was unrestricted. In any event, the concessions made under cross-examination, to which I have already referred, support a finding that, despite injury sustained to the spine in the transport accident and the work-related injury, the plaintiff’s current tolerances for walking, sitting and standing are probably no worse than before the transport accident.
[189] PCB 150-157
201 The plaintiff, however, specifically relied on those parts of Mr Walsh’s report in which the plaintiff had indicated that, after commencing employment as a delivery driver chronic lower back, mid-back and neck pain had increased.
202 According to the report made, when the plaintiff commenced his new employment he: “initially required no pain medication and in twelve months has doubled the dosage. The pain increases during the day and towards the end of the working week and he rests over the weekend to be ready for the next weeks work.”[190]
[190] PCB 155-156
203 The clinical notes indicated attendances during 2013 and 2014 for treatment of back and neck pain, with prescription of medication including the anti-inflammatory, Celebrex in August 2013. Both this drug and the Diclofenac medication were discontinued on 25 November 2013 when the plaintiff apparently indicated that he was coping at work and “(g)ets sore in back but recovers”. The Diclofenac prescription was, however, renewed on 8 April 2014, after the plaintiff reported headaches, neck pains and lower back pain, the latter “at times”. [191]
[191] TAC 5
204 Leaving to one side the prescription of Celebrex over a limited period, I did not understand from these clinical notes, that medication had doubled in the 12 months preceding the April 2014 assessment or, from the evidence as a whole, that the new job was under threat due to any inability to manage pain or the inherent requirements of the job.
205 Accordingly, based on the documentary evidence and the plaintiff’s responses at hearing:
· clinical and documentary evidence indicated likely work-related injury at the level of the thoracolumbar spine, initially necessitating further physiotherapy treatment and, from time to time, prescription of analgesic and anti-inflammatory medication;
· the work-related injury generated further radiological investigation of the thoracolumbar spine only;
· the weight of the treating and specialist evidence supported a finding that the work-related injury probably involved unresolved aggravation of pre-existing degeneration in the thoracolumbar spine and pre-existing spondylolisthesis. The plaintiff’s condition was now stabilised;
· the evidence did not sufficiently relate the increase in slippage shown on the radiological evidence to either the transport accident or the work-related injury;
· while the work-related injury probably also involved soft tissue injury to the cervical spine, current clinical findings suggest that this was probably no longer an area of particular concern;
· in April 2014, anti-inflammatory medication was again prescribed to manage particularly lower back pain. The plaintiff’s evidence alone was insufficient to satisfy me that he currently also required daily pain relief with the over-the-counter medication Panadol Osteo.[192] This is not to deny that, firstly, consistent with the medical evidence and the underlying pathology, the plaintiff may require analgesic medication from time to time and, secondly, additional to this the prescription of anti-inflammatory medication after the work-related injury had been, at that time, an indicator of increased pain levels and, more recently, the latter was an indicator of likely intermittent back pain;
· since about April 2013 the plaintiff has successfully undertaken full-time alternative employment delivering boxes of seafood, although these duties may lead to some intermittent back soreness;
· based on the medical evidence the plaintiff was probably permanently incapacitated for his pre-injury employment, although he has shown a capacity to cope with alternative employment requiring regular lifting of boxes weighing up to 15 kg each. It was common ground that, whilst the plaintiff’s return to work full-time, indicated against there being a serious injury, this factor alone was not determinative of the claim.
[192] TN 93-94
206 In summary then, counsel representing TAC correctly submitted that, other than the evidence of Dr Tunaley and Mr Shannon, none of the specialist evidence appropriately delineated the probably level of impairment of the plaintiff’s spine had the work-related injury not occurred. This is not to deny that the plaintiff suffered injury to his spine as a result of the transport accident, with likely increased levels of particularly lower back pain and the need for treatment and prescribed medication. However, I could not be satisfied by the evidence as a whole that these consequences would have continued over the long-term or that the plaintiff’s capacity to perform his restricted pre-injury employment had been lost to him over the long-term.
207 In these circumstances, the plaintiff has not established long-term serious impairment of his spine (considered as one body function) as a result of the transport accident. If I am wrong and there was some long-term impairment properly attributable to particularly injury to the lower back, the evidence did not permit a clear understanding of the extent to which the plaintiff would have been affected had the work-related injury not occurred nor did it permit disentanglement of the consequences of the Henkel injury from the later injuries or the consequences of the later injuries from each other.
Pain and suffering consequence
208 Evaluation of the pain and suffering consequence in the present case required detailed consideration of the evidence relating to the plaintiff’s experience of and the effect of pain on his physical capabilities and enjoyment of life.[193]
[193]Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69 [9]-[17], applied in Sutton v Laminex Group Pty Ltd [2011] VSCA 52 and more recently in Aburrow v Network Personnel Pty Ltd [2013] VSCA 46
209 The evidence given by the plaintiff during re-examination was that his pain levels at the end of a working day in 2008/2009 had been much greater than before the transport accident and he experienced flare-ups at the rate of 3 to 4 times each week as compared to fortnightly before the transport accident.[194] He claimed that the frequency and severity of back pain never returned to the level before the transport accident and, as a result of the work-related injury, the pain level became severe. The latter, the plaintiff claimed had not subsided, pain was “there all the time” and it was “severe” every day.[195]
[194] TN 121
[195] TN 121-122
210 There was, however, an absence of reliable corroboration of the reported experience of pain and the plaintiff’s reports of the disabling effect of pain.
211 It is convenient at this juncture to summarise the pain and suffering consequence to which the plaintiff referred in later affidavits.
212 In his third affidavit, sworn on 19 January 2012, the plaintiff deposed to consequences, all of which he attributed to injury sustained in the transport accident. He spoke of the following matters:[196]
[196] PCB 31-32
· dependence on his new wife for assistance in domestic activities. The plaintiff has since separated and now lives with his parents;
· struggling with heavier household tasks such as vacuuming, changing beds or hanging washing;
· difficulty mowing the lawns due to pain;
· limitations on his ability to shop for groceries;
· limiting dog walking because this tended to increase neck and shoulder pain. Under cross-examination, the plaintiff, nonetheless, indicated that when he still had dogs he walked them when he “could”.[197] Notably the history obtained by Mr McArthur indicated that in the latter part of 2011 the plaintiff enjoyed watching football and walking his dog. As far as I could tell there was no appreciable difference between the current activity and the plaintiff’s report during re-examination of the extent to which he walked dogs in 2005 and 2006;[198]
[197] TN 82
[198] TN 126-127
· finding gardening (which he used to enjoy) difficult. In his first affidavit the plaintiff deposed that he had taken up gardening as a new hobby subsequent to the transport accident, but found that this activity was limited by pain. Under cross-examination the plaintiff confirmed that this gardening involved tending what he called “a little patch of veggie, like herbs and that”.[199] However, as I understood some of the reports made to doctors in 1998, this activity and other home chores had either been limited or precluded by the Henkel back injury. Accordingly, without reliable corroboration, I was not satisfied of any appreciable difference from the plaintiff’s capacity to perform gardening activities before the transport accident;
[199] TN 75
· limiting driving to shorter distances (“Lisa generally drives for longer distances because I find the activity of driving quite difficult and painful”). In view of the plaintiff’s current occupation and the sitting tolerance reported, without reliable corroboration, I was not satisfied of any appreciable difference from the plaintiff’s capacity to drive longer distances before the transport accident;
· needing help with some self-care tasks, such as getting out of a bath or up from a bed. There were many inconsistencies in the reports made to doctors from time to time about the limitations on the plaintiff’s activities. For instance, as mentioned, in 2012 Dr Leu took a history that the plaintiff could perform self-care tasks. Again, without reliable corroboration, I was not satisfied of any appreciable difference from the plaintiff’s capacity to perform self-care tasks before the transport accident;
· significant difficulty sleeping (“The neck pain in particular makes it difficult for me to find a comfortable position to fall asleep and I am still generally woken by pain every night. I generally take 2 extra Panadol Osteo tablets every night before going to bed though this does little to control the pain”);
· reduced libido due to pain and medication and difficulty having sex due to pain in his neck and back. This was a circumstance on which the plaintiff’s counsel placed specific reliance in closing submissions. I have already mentioned the reports to doctors in 1998 which indicated long-standing problems with reduced libido and sexual function attributed by the plaintiff to the Henkel back injury. The clinical notes indicate that in August 2012 the general practitioner prescribed Viagra in the treatment of erectile dysfunction, although this prescription was discontinued on 25 November 2013 due to an adverse reaction. I was unable to ascertain from the evidence as a whole to what extent, if any, medications prescribed for back pain or for the Bipolar affective disorder currently impacted the plaintiff’s libido or sexual function. Moreover, I could not discern what, if any, difference there was in libido or sexual function before the transport accident or before the work-related injury. What was clear was that the plaintiff’s personal life had been significantly impacted prior to the transport accident by both the Henkel back injury and significant mental health issues;
· difficulty picking up and playing with grandchildren, then aged 2 and 4. In the past the plaintiff reported the Henkel back injury had caused difficulty picking up and playing with his children. I could not readily tell from the evidence, the difference, if any, in the plaintiff’s capacity to say lift and carry and play with a child since having grandchildren whether after the transport accident or after the work-related injury.
213 In addition to the social and recreational consequences alleged in paragraph 18 of the plaintiff’s final affidavits (the content of which was set out under the heading “Credit issues”), on 7 May 2014 the plaintiff deposed to consequences resulting from each injury. He adopted and repeated the pain and suffering consequence outlined in previous affidavits, without attempting to disentangle those attributed to the transport accident from those due to the work-related injury. The plaintiff spoke of the following matters:[200]
[200] PCB 37-38 and 58-59
· increased back, neck and shoulder pain at the end of each working day, for which the plaintiff generally required greater quantities of the medications, Diclofenac and Panadol Osteo. My analysis of particularly the record of prescribed medication has not indicated increased usage of this medication. There was one prescription of Celebrex in August 2013, although, as previously noted, no analgesic or further anti-inflammatory medication was prescribed between 25 November 2013 and 8 April 2014. I have, nonetheless, accepted that the increase in prescribed medication following the work-related injury was consistent with a likely increase in back pain from before the work-related injury and, from time to time the plaintiff’s current work activity could increase the pain levels and require pain-relief medication;
· increased physical activity during the day had, the plaintiff alleged, led to more regular disruption of sleep. This was a circumstance upon which the plaintiff’s counsel placed specific reliance in closing submissions. I have already mentioned evidence under cross-examination, through which the plaintiff indicated he slept well and sleep had improved over the years. In these circumstances, I have given little weight to the contradictory evidence given during re-examination that the plaintiff’s sleep was affected by pain every night and was worse than in 2006;[201]
· limitations on his capacity for domestic work, although it now seems that the plaintiff’s mother performs most of the household chores by choice. During re-examination the plaintiff indicated that he could do some domestic chores by helping his mother shop and by occasionally hanging washing. However, according to the plaintiff, his mother had someone to garden and she preferred to do the washing and cooking.[202] If, as was also alleged, activities such as vacuuming, scrubbing the bathroom or making beds led to increased back pain, without reliable corroboration, I was not satisfied as to any appreciable difference from the plaintiff’s capacity to perform heavier household tasks before the transport accident or after the work-related injury;
· considerable curtailment of social activities. I have already rejected the plaintiff’s affidavit evidence that ten pin bowling was a past-time lost to him after the transport accident. Playing pool with friends was another activity mentioned by the plaintiff, for the loss of which there was no reliable corroborating evidence. Attendance at local football matches was unchanged, although the plaintiff deposed he had to alternate frequently between sitting and standing to avoid increasing neck and back pain. My analysis of the evidence of the plaintiff’s sitting and standing tolerances, nevertheless, suggests that his current baseline tolerances compare very favourably with those reported prior to the transport accident. Under cross-examination the plaintiff also acknowledged that he continued attending the RSL to socialise with friends.[203]
[201] TN 127
[202] TN 127
[203] TN 82
214 Dancing at clubs with friends and family prior to the transport accident was another activity mentioned by the plaintiff in his first affidavit. He deposed that attempts to dance on a couple of occasions since the transport accident had resulted in back, neck and shoulder pain and, as a result, this was another hobby the plaintiff could no longer enjoy.[204] Cross-examination, however, revealed that the plaintiff probably had not gone dancing for some 5 to 6 years, well before the work-related injury (and therefore not a relevant consequence) but after the transport accident.[205]
[204] PCB 16
[205] TN 82
215 Based on the matters summarised above, if it was the case that there was long-term impairment of the plaintiff’s spine due to injury sustained in the transport accident as well as permanent impairment due to the work-related injury, the plaintiff has not satisfied me that, at the date of hearing, either impairment was causative of:
· inability to walk his dogs, garden, drive for longer distances, attend to self-care tasks or sleep ;
· reduced libido or sexual dysfunction;
· further reduced capacity for domestic chores or further curtailment of recreational/social activities.
216 The regularity with which medication was prescribed increased after the transport accident and, currently, from time to time the general practitioner prescribes anti-inflammatory medication. However, if, as the plaintiff alleged, the transport accident and work-related injury both contributed to impairment of the plaintiff’s spine, the evidence did not allow any clear understanding of the extent to which the use of this medication was due to the transport accident.
217 In his closing submission, counsel for the plaintiff also placed considerable reliance on the loss of the plaintiff’s preferred choice of work and loss of income, the latter particularly since he returned to alternative employment.
218 As mentioned, I was not satisfied that the plaintiff’s capacity for full-time restricted employment in the industry in which he worked before the transport accident had been lost to him before the work-related injury. Accordingly, the basis for considering this and any pecuniary disadvantage under the TAC claim was not made out.
219 Court of Appeal authority, however, tells us that under s134AB of the Act, a worker’s inability to engage in employment formerly engaged in, may be relevant to the assessment of the pain and suffering and loss of enjoyment of life consequence.[206]
[206]Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326, [35], [38] and [44]-[49]
220 Under cross-examination, the plaintiff acknowledged that his return to employment in 2013 had increased his self-esteem but added that he worked with pain.[207] In my view the plaintiff was not required to specifically assert that he had enjoyed his pre-injury employment, employment the medical evidence suggested was probably now closed off to the plaintiff as a consequence of the work-related injury. Pecuniary loss aside, in this case I have accepted that the likely permanent inability to engage in the range and kind of more physically demanding work in which the plaintiff hitherto engaged was a relevant consideration.
[207] TN 113
Conclusions
221 As to the leave application made against TAC, I was satisfied that as a result of the transport accident the plaintiff sustained likely soft tissue injury to the cervical, thoracic and lumbar spines.
222 If it were the case that injury also involved aggravation of lower back disc degeneration and spondylolisthesis, as at the date of hearing, I could not be satisfied that impairment of the plaintiff’s spine as a result of injury sustained in the transport accident was long-term or that it was serious by reference to the plaintiff’s experience of pain or any impact of impairment on the plaintiff’s day-to-day activities and enjoyment of life.
223 As my summary of the pain and suffering and loss of enjoyment of life consequence (in which the significance of what the plaintiff has lost was informed to some extent by what he had retained) has shown I was not able to link the consequences alleged to ongoing impairment of the plaintiff’s spine as a result of injury sustained in the transport accident.
224 I propose to make an order dismissing application made against TAC.
225 As to the leave application made against 7 Steel, I was satisfied that as a result of the work-related injury the plaintiff probably sustained soft tissue injury to the cervical spine. The plaintiff did not satisfy me that this injury was productive of ongoing impairment.
226 I was further satisfied that the plaintiff probably sustained an unresolved aggravation of pre-existing degeneration in the thoracolumbar spine and pre-existing spondylolisthesis.
227 The impact of this impairment must be considered against the background of an already impaired body function. To the extent that these can be traced to the work-related injury, impairment consequences have been summarised. They probably involve for the foreseeable future the endurance of intermittent work-related lower back pain requiring, from time to time, prescriptions of pain-relief medications and, despite his return to full-time employment, a narrowing of the plaintiff’s choices to engage in the more physically demanding employment in which he engaged before the work-related injury. I did not, however, form the view that the plaintiff’s level of activity in his alternative employment was somehow greater than might have been expected given the assessment of the level of his pain and disability or, the fact that he had returned to employment was evidence of a willingness to endure a high degree of pain in order to keep working.
228 The test is whether the plaintiff has established that the pain and suffering consequence of the injury to his spine as a whole, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may be fairly described as being more than significant or marked and as being at least very considerable. As the Court of Appeal has explained in the past, applying this test involves a value judgement in which matters of fact and degree, and of impression, play a role.[208]
[208]Stijepic v One Force Group Pty Ltd [2009] VSCA 181, [41]
229 Section 134AB(38)(c) of the Act requires the Court to consider where, on its facts, the present case sits when compared with other cases in the range of possible impairments or losses of body function. My summary of the pain and suffering and loss of enjoyment of life consequence (in which again the significance of what the plaintiff had lost was informed to some extent by what he had retained) was in my view consistent with a finding that the consequence in respect to the injury particularly in view of the narrowing of the plaintiff’s employment choices was aptly characterised as significant or marked. I was not, however, persuaded that by comparison with other cases in the range of possible impairments, the consequence so described could be fairly characterised as: “at least very considerable”. In these circumstances the plaintiff has not met the requirements of the narrative test and I propose to also order dismissal of the application made against 7 Steel.
0
11
0