Bhakhar v Victorian WorkCover Authority
[2020] VCC 939
•2 July 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-19-05117
| SANWAR BHAKHAR | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE HINCHEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 May 2020 | |
DATE OF JUDGMENT: | 2 July 2020 | |
CASE MAY BE CITED AS: | Bhakhar v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 939 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – impairment of the spine – impairment of the lower left limb – paragraph (a) of the definition of “serious injury” – whether consequences of injuries are serious in nature – relevant principles
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; Humphries & Anor v Poljak [1992] 2 VR 129; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Sabo v George Weston Foods [2009] VSCA 242; Hunter v Transport Accident Commission& Avalanche [2005] VSCA 1; Fox v Percy (2003) 214 CLR 118; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Halpin v Wilson Transformer Co Pty Ltd [2012] VSCA 235; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260
Judgment: Application granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C W Harrison QC with Mr S Martin | Slater & Gordon Lawyers |
| For the Defendant | Mr R Stanley | Lander & Rogers |
HER HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff while employed by Ordell Pty Ltd and Sinclair, Maurice & Tracol Investments Pty Ltd (“the employer”), specifically in the course of riding a horse on 9 May 2013 (“the accident”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering.
Relevant legal principles
3 The application for leave to bring proceedings for damages is brought pursuant to clause (a) of the definition of “serious injury” as defined in s134AB(37) of the Act, namely:
“‘Serious injury’ means –
(a) permanent serious impairment or loss of a body function. ... .”
4 The body functions said to be impaired are function of the spine and the function of the lower left limb.
5 In order to establish an entitlement to recover damages under the Act, apart from satisfying the definition of a “serious injury,” by s134AB(1) of the Act, the relevant physical or psychological injury must have arisen out of or due to the nature of the plaintiff’s employment with the employer on or after 20 October 1999.[1] As set out in s134AB(37) of the Act, the impairment of the body function must be permanent.[2]
[1]Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622
[2]Barwon Spinners Pty Ltd & Ors v Podolak (ibid) at paragraph [33]
6 The plaintiff has the burden of proof on the application. The standard of proof is on the balance of probabilities.
7 In relation to the physical injury which relates to the impairment of a body function, by s134AB(38)(b) and (c) of the Act, it is the “consequences” of the bodily impairment which produce the “pain and suffering” or “loss of earning capacity” which must be “serious” – that is, the plaintiff must prove, on the balance of probabilities, that the impairment or loss of body function results in relevant “consequences” that are “when judged by comparison with other cases in the range of possible impairments … fairly described as being more than significant or marked, and as being at least very considerable”. This has been referred to as the “narrative” test.
8 It is not permissible to aggregate the consequences of two separate injuries when assessing whether the plaintiff has suffered a “serious injury” for the purposes of the Act.[3] Thus, the consequences of the injury to the function of the plaintiff’s spine, must be assessed separately from the consequences of the injury to the function of the plaintiff’s lower left limb, in order to reach a conclusion as to whether either injury, on its own, produces consequences which are “serious” under the Act.
[3]Humphries & Anor v Poljak [1992] 2 VR 129 at 138
9 In determining the application, the Court:
(a) must assess whether “the injury” is a “serious injury” as at the time the application is heard.[4] In relation to the assessment of the pain and suffering consequences of an injury, it has been held that this task is largely a question of impression or value judgment;[5]
(b) must give reasons that disclose the pathway of reasoning in dealing with the evidence and issues raised by the application.[6]
[4]Section 134AB(38)(j) of the Act
[5]See Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592 at 628; see also Sabo v George Weston Foods [2009] VSCA 242 at paragraph [67]
[6]See generally HuntervTransport Accident Commission & Avalanche [2005] VSCA 1 at paragraphs [23]-[26]
10 Section 134AB(38)(h) of the Act requires the Court to disregard all psychological or psychiatric consequences in determining an application which relates to a physical impairment.
11 In determining the seriousness of the “consequences” of the injury, the Court is required to assess the matter by reference to this particular plaintiff, viewed objectively, arising from the particular injury in question.
12 In reaching my conclusions in relation to the application for leave to bring proceedings for damages, I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[7] and Grech v Orica Australia Pty Ltd & Anor.[8]
[7](2005) 14 VR 622
[8](2006) 14 VR 602
13 The plaintiff relied upon two affidavits and was cross-examined at length.
14 In addition, both parties relied upon medical reports and other materials which were contained within court books tendered in evidence.[9] I have read all of the tendered material. In this judgment, I will refer only to the relevant parts of the tendered materials.
[9]The Plaintiff’s Court Book (“PCB”) was marked as exhibit P1; the Defendant’s Court Book (“DCB”) was marked as exhibit D1
The Plaintiff’s background
15 The plaintiff was born in India in 1982. He is presently aged thirty-seven years. He migrated to Australia on 22 March 2005.[10]
[10]Ex P1, p12
16 Following his arrival in Australia, the plaintiff commenced working for David Hayes Racing Pty Ltd in Angaston. He was initially employed as a stable hand, before graduating to a track rider. He then worked for a short period as a pre-trainer. He thoroughly enjoyed this work.[11]
[11]Ex P1, p12
17 In approximately 2011, the plaintiff moved to Euroa, where he continued to work with David Hayes Racing Pty Ltd. After two further years, he decided that he would move closer to Melbourne. He did so as his wife and he wanted to be closer to the city so that there would be better opportunities for their children.[12]
[12]Ex P1, p12
18 The plaintiff commenced working for the employer on 12 February 2013. He was employed as a stable hand/track rider. When he commenced his employment, he requested that he not do any work which involved riding horses that were in the process of being broken in. His duties were mainly limited to working as a stable hand, but he also rode horses which were being pre-trained after they had been spelled for periods of time. The pre-training work involved riding many different horses for many well-known trainers in metropolitan Melbourne. He was employed on a full-time basis and he enjoyed his work. He loved working with horses.[13]
[13]Ex P1, pp12-13
The accident
19 The plaintiff described the accident in the following way:[14]
“On 9 May 2013 I suffered significant injuries in the course of my employment. On this day, I was required by my employer to ride a horse which was a yearling. It had not been broken in. I was required to ride the horse next to a co-worker who was riding a pony. The co-worker agreed that he would stop the pony after the area where there was a gap in the track. This gap had a gate on it which was usually closed during track work. On this day, the gate had not been closed. Unbeknown to me, the track worker stopped riding the pony momentarily before the area where there was a gap in the track. I had no time to stop riding my horse and when it saw the gap in the track it instinctively attempted to gallop through that area. As it did so, it caused me to strike a side post which then caused me to be dislodged from the horse and [fall] to the ground.
… I had significant leg pain and back pain immediately following the incident. It was clear to me that I had sustained a serious left leg injury. I was taken by ambulance to Dandenong Hospital. I believe that investigations were undertaken and I was admitted to that hospital. I remained there for approximately five days and during this time I underwent surgery. Following that surgery, I was reviewed in the orthopaedic clinic and this continued until approximately mid-2014. I continued to experience ongoing back and leg pain. I underwent physiotherapy and hydrotherapy treatment.”
[14]Ex P1, p13
20 Due to his ongoing symptoms, particularly his lower back pain, the plaintiff attended his general practitioner in May 2014 and he was referred to see Professor Richard Bittar, neurosurgeon. He attended Professor Bittar for the first time on or about 20 August 2014. At that time, he was continuing to have significant and at times severe lower back pain which radiated into both of his legs, worse on the left side. He was also suffering from numbness in his leg which extended to the left calf.[15]
[15]Ex P1, p13
21 Mr Bittar referred the plaintiff to see Dr Symon McCallum, pain physician and specialist anaesthetist. He was reviewed by Dr McCallum on or about 21 October 2014. At that time, he was experiencing ongoing symptoms particularly lower back pain. His symptoms were often aggravated by walking, prolonged sitting and prolonged standing. Dr McCallum arranged for the plaintiff to have a left-sided nerve root injection administered to his lower back. This injection did not provide the plaintiff with any improvement of his symptoms.[16]
[16]Ex P1, p13; see also operation record for left-sided S1 nerve root injection dated 9 December 2014
22 Both Dr McCallum and Professor Bittar explained to the plaintiff that he might benefit from surgery on his lower back; however, they also explained the risks of having such an operation. In light of those risks, the plaintiff decided not to undergo surgery.[17]
[17]Ex P1, pp13-14
23 The plaintiff underwent some physiotherapy treatment, which continued until about April 2016. The physiotherapy treatment did not provide him with any long lasting relief of his symptoms.[18]
[18]Ex P1, p14
24 Due to his ongoing symptoms, it became clear to the plaintiff that he needed to consider a career change. In approximately February 2014, the plaintiff commenced studying nursing at Latrobe University, Bundoora. He completed this course in December 2016. During the course of these tertiary studies, he was required to perform a significant amount of clinical hours as a nurse in various nursing sectors. He struggled on a regular basis with such work. In particular, he found that prolonged standing, bending, lifting and any awkward movements, put a significant amount of pressure on his lower back, and his symptoms increased with such work. By the end of 2016, he knew that he would not be able to work as a nurse into the future.[19]
[19]Ex P1, p14
25 In 2016, the plaintiff commenced work as a truck driver for Combined Horse Transport. He was employed on a casual basis. His work involved driving horses between stables and racecourses in Victoria, and also interstate. He took on such work, as his experience with horses allowed him to help unload and load the horses when required. There were often times during the course of his work when he suffered from significant lower back pain. Usually this would occur after he had been driving for more than several hours at a time.[20]
[20]Ex P1, p14
26 During 2016, he also worked as an Uber driver for a period of time. He did this work in an effort to supplement his income.[21]
[21]Ex P1, p14
27 In 2017, the plaintiff tried to return to work as a stable hand for Robbie Griffiths, who is a horse trainer based in Cranbourne. After a very short period of time, he was unable to continue due to the increase in symptoms that he experienced from this work. He also worked for a short period of time at Bussutin Racing. He was unable to manage this situation due to his ongoing back and leg pain.[22]
[22]Ex P1, p14
28 The plaintiff then started working on a full-time basis for Condo’s Horse Transport Pty Ltd (“Condo’s”) as a truck driver. This work involved him driving horses to and from racecourses and stables. He found the performance of this work very difficult to manage. Often he would experience significant lower back pain, particularly when he was towards the end of his shift.[23]
[23]Ex P1, pp14-15
29 In light of the problems that he experienced, the plaintiff made the decision to resign. He ceased work at Condo’s on 3 May 2018. Over the following three months, he struggled to obtain alternative work, and given his financial situation, he decided to return to Condo’s. Since that time, the name of the company has changed to G C Horse Transport Pty Ltd (“G C Horse Transport”).[24]
[24]Ex P1, p15
The Plaintiff’s evidence
30 The plaintiff swore two affidavits, the first on 27 May 2019 and the second on 30 April 2020.
31 In summary, his evidence as to the pain and suffering consequences which he presently experiences, is as follows:
Experience of pain
Back Pain
(a)he suffers from significant lower back pain. The pain is constant in its nature but is often worse after activity; [25]
[25]Ex P1, p15
(b)the lower back pain which he experiences radiates into his buttocks and into his legs, worse on the left side. He also experiences numbness in his left foot and toes; [26]
[26]Ex P1, p19
(c)he struggles to bend over without experiencing increased back pain;[27]
[27]Ex P1, p19
(d)he finds that things such as prolonged sitting, bending, squatting and standing aggravate his back pain;[28]
[28]Ex P1, p15 and p19
(e)simple things such as performing any heavy domestic activities like mopping and/or vacuuming increase his lower back pain. He is largely reliant on his wife to perform such activities; [29]
[29]Ex P1, p19
Left Leg Pain associated with fractured femur
(f)he continues to experience leg pain in the area of the femur fracture; [30]
[30]Ex P1, pp19-20
(h)the leg symptoms he experiences continue to be worse after prolonged walking, standing and after activities such as going to the shopping centre for a few hours; [31]
[31]Ex P1, pp19-20
(i)he considers that his left leg is a lot weaker than his right leg; [32]
[32]Ex P1, pp19-20
(j)he believes that he has muscle wasting in the left leg;[33]
[33]Ex P1, pp19-20
Medication and Treatment
Back Pain
(j)in April 2019, he attended his general practitioner when he had a flare up of back pain, and received a referral for chiropractic treatment. He then received approximately six sessions of chiropractic treatment from Mr Robbie Hunt. He found that the chiropractic treatment provided some short-term relief of his lower back pain, but after a period of time the symptoms returned. As a result of this, he did not persist with that treatment;[34]
[34]Ex P1, p19
(k)his wife regularly gives him a massage to help him manage his lower back pain. She gives him a massage several times a week. He finds that such massages provide him with short term relief; [35]
[35]Ex P1, p19
Back Pain and Left Leg pain associated with fractured femur
(l)he regularly uses Deep Heat and heat packs to help manage his lower back pain and leg pain;[36]
[36]Ex P1, p19
(m)he relies on medication to assist with his symptoms. He takes Panadol and Nurofen on a daily basis. There are some days when he would take as many as eight tablets throughout the day. On average, he believes he would take four to six tablets each day. He also takes Panadeine Forte several times through the week and takes OxyContin when he has a flare up of symptoms;[37]
[37]Ex P1, p16 and p20
Sleep
Back Pain
(n)due to his ongoing back pain, his sleep has been affected. Often after he has been at work and has been driving long distances, he will then find it difficult to enjoy an uninterrupted night of sleep. He often wakes up during the night several times with increased back pain. He then finds it difficult to get back to sleep. If this occurs, it is difficult for him to function the following day. He has had to learn to manage this; [38]
[38]Ex P1, p16 and p20
(o)he believes that the fatigue he experiences often causes him to be irritable and moody. The lack of sleep he experiences has begun to “wear him down”. There are many nights when he only gets three to four hours of sleep. Much of his time in bed is spent trying to get comfortable;[39]
[39]Ex P1, p20
Activities of daily living
Back Pain
(p)as a result of the ongoing symptoms which he experiences, his ability to perform domestic duties is impacted. He struggles with simple things such as vacuuming and mopping as these activities worsen his back pain. He is significantly reliant on his wife to do the majority of household duties. If there is anything heavy which needs to be done at home and he tries to perform this task, he will “pay for it afterwards”;[40]
[40]Ex P1, p16
Left Leg Pain associated with fractured femur
(q)before the accident, he enjoyed running. Usually he would run before he started work each day and would often run for up to 5 kilometres. He thoroughly enjoyed running as it allowed him to maintain a high level of fitness. He has been unable to return to any running on an ongoing basis and misses this activity. He has tried to go for several runs but has found that in doing so, he suffers from an increase of pain and “pays for it” afterwards;[41]
[41]Ex P1, p16
Back Pain and Left Leg Pain associated with fractured femur
(r)before the accident occurred, he enjoyed playing cricket. He has always loved playing and watching cricket. He played for a team when he was living in Angaston and also when he was living at Euroa. He enjoyed playing cricket and the social interactions that existed when playing in a team. Due to the problems that he has with prolonged standing, running and bending, he has not been able to return to playing cricket and is limited to watching from the sidelines;[42]
[42]Ex P1, p17
(s)as a result of the injuries which he has sustained, he has suffered a significant increase in his weight. At the time of the accident, he weighed approximately 65 kilograms. He presently weighs about 84 kilograms. He considers the increase in his weight to be directly attributable to his inability to be as active as he would like and to maintain a high level of fitness due to the injuries which he has sustained. The increase in weight which he has experienced is something which he is extremely frustrated and embarrassed about. He dislikes his appearance;[43]
[43]Ex P1, p16
(t)he has tried to increase his fitness by doing some light exercise. On a regular basis he will visit a fitness centre. He tries to do some light bike riding and swimming but usually after a short period he finds the pain too much to manage. Much of his time at the gym will be spent in the sauna or spa;[44]
[44]Ex P1, p16
(u)as a result of the injuries which he sustained, he has trouble walking long distances. He now walks with a limp and he believes that his gait has changed;[45]
[45]Ex P1, p16
(v)as a result of his injuries, his relationship with his children has been affected. He cannot play with them in the way that he would like. His children are at an active age and have started to enjoy playing various sports. He tries to play with them but usually only lasts a very short period. He is extremely concerned by the symptoms which he experiences and the fact that such symptoms will continue to affect the way that he can interact with his children into the future;[46]
[46]Ex P1, pp16-17
Employment
Back Pain
(w) he continues to work for G C Horse Transport but struggles on a daily basis. His duties remain limited to driving horses between stables and a racecourse. Most of the work is in Victoria. On occasion, he drives to Adelaide or Sydney;[47]
[47]Ex P1, p15
(x)he struggles with the long distance driving as this causes increased back pain. He regularly needs to take breaks. When he travels interstate, he usually arrives one day before the horses are to race and leaves one day after the race is held. This break assists him with his pain;[48]
(y)when he is working in Victoria, he arrives at the racecourse several hours before the race and then leaves several hours after the race. He needs this break to help him manage his pain;[49]
(z)he had always hoped to work more directly with horses. At the time of the accident he had hoped to continue working as a track rider or stable hand and had intended eventually to commence his own horse breaking facility where he would operate a pre-train facility. He believes that this opportunity is now lost to him as such work is at times physical. This upsets him;[50]
(aa)he does not perform any of the cleaning tasks at work that are required in the horse stalls. He does not perform this work as it requires him to perform a significant amount of bending and other awkward movements which place a strain on his back;[51]
(bb)he manages this situation by only using certain parts of the stalls in the truck and then changing the location that the horses will be placed in on the return trip home. This way the horses do not need to be transported home from races in stalls that need to be cleaned. Most of the loading and unloading of the horses is done by strappers and/or stable staff;[52]
(cc)he finds that driving can cause him problems even when it is not interstate work. After he has been seated for more than 45 minutes to one hour, he suffers from increased back pain in his low back and numbness in his left leg. He regularly needs to take breaks on the way to and from racecourses in Victoria;[53]
(dd)there are parts of his job which he finds difficult to do. For instance, he struggles with the cleaning of the truck where the horses have been situated during the horse transport. His employer is a very supportive person and usually performs this task; [54]
[48]Ex P1, p15
[49]Ex P1, p15
[50]Ex P1, p15
[51]Ex P1, p20
[52]Ex P1, pp20-21
[53]Ex P1, p21
[54]Ex P1, p15
Back Pain and Left Leg Pain associated with fractured femur
(ee)he struggles with walking the horses to and from the stables but will often have the assistance of other workers employed by the stable and/or a co-worker to assist him;[55]
(ff)he is most upset that he has not been able to return to any horse riding as a track rider. He loved horses and particularly loved riding them. He does not consider that he will ever be able to return to track riding and this frustrates him. He believes that his career has stalled as a result of the injuries that he sustained in the accident.[56]
[55]Ex P1, p15
[56]Ex P1, p22
32 Under cross-examination, the plaintiff gave the following evidence:
(a)he did not have a bad back before May 2013. He did not have any back injury as a child;[57]
[57]T9, L17-19
(b)when shown a medical note which recorded an accidental injury to his lower back as a child, he said that he thought there must be some kind of mistake because he had no injury and only suffered injury to his lower back when the accident happened;[58]
[58]TT9-10
(c)he agreed that he was involved with the police in 2018. He said that this was in the context of a report of family violence made by his wife against him. He said that later, his wife agreed that she had made up the complaint and then the matter went away;[59]
[59]T10, L9-26
(d)he denied that he had injured his back in an assault. He said there was nothing physical that had occurred;[60]
[60]T10, L27-29
(e)he attended the Casey Superclinic between 2013 and 2016, at which time he began attending the Pakenham Clinic. He continues to see doctors at the Pakenham Clinic;[61]
[61]TT10-11
(f)he agreed that since 2013 he has been to three different medical practices. He said that this was because his regular family general practitioner opened up her own clinic in Pakenham. His family started to attend that clinic so that they could continue to see their regular family doctor;[62]
[62]T11, L13-27
(g)he said that the reason that there was no report from his current general practitioner Dr Nafisun Bhuiyan, is because the solicitors were chasing that doctor but it took too long to get the reports;[63]
[63]TT11-12
(h)he was not able to say why there was no report in the Court Book from either his physiotherapist or his chiropractor;[64]
[64]T12, L3-16
(i)he agreed that in March 2015, Professor Bittar had offered to review him at some stage in the future. He agreed that Dr McCallum had also offered to see him in the future, if he continued to have problems. He said the reason that he did not consult these practitioners at a later date was because: “They offered me the surgery and I said I’m not going to do it …;”[65]
[65]TT12-13
(j)he agreed that a video taken in January 2015 depicted him at the shops in Dandenong walking to and from his car. He agreed that the video appeared to show no restriction of movement. He said that at the time the video was taken, he was fully engaged in the gym and hydrotherapy, and that when he goes outside, he always tries to walk properly. He said that he has a limp “all the time”. When it was suggested to him that the video did not show him walking with any limp he maintained his evidence that he has a limp;[66]
[66]T14, L8-31
(k)he gave evidence that in the video he was wearing a strap on his knee. He said that no one had advised him to wear the strap, but that he had just decided to do so himself. He said that he wears the strap because it gives a lot of “support”. He said that his knee is painful because “the nails are just above the knee … it’s so tender [in that spot] … so when I put the knee strap it give[s] me a lot of support … to hold it tight;”[67]
[67]T15, L3-22
(l)he accepted that the video did not depict any restriction of movement in his back. Despite this, he said that he is “uncomfortable” when he is walking;[68]
[68]T15, L23-26
(m)he said that the injection that was given to him by Dr McCallum “worked about a month or so … and then the … symptoms is starting to flare up again”. He said that the video coincided with a period when he was being treated by both Professor Bittar and Dr McCallum;[69]
[69]TT13 and 15-16
(n)he agreed that during 2015 he did not attend at his general practitioner complaining of back pain. He said that this was because he was “self-managing,” going to Casey Recreational Centre and doing swimming and hydrotherapy;[70]
[70]T17, L1-20
(o)he agreed that at the time he saw Mr Michael Shannon, orthopaedic surgeon, he told that doctor that he was taking Endone and Panadeine Forte. He said that the reason that prescriptions for these medications did not show up in the medical records of Casey Superclinic was that he got a sufficient supply of Panadeine Forte from India when he travelled there, and that he had been prescribed Oxycodone by another doctor;[71]
[71]TT17-18
(p)it was suggested to the plaintiff that he was making up his evidence about where he obtained the medication from. In response he said “No … I’m not making it up, I still got at home;”[72]
[72]T19, L6-8
(q)he denied that when he saw Mr Shannon, his main complaint was predominantly of left leg pain rather than back pain. He said that both of those areas were a problem for him;[73]
[73]TT19-20
(r)he said that the reason that he complained to Dr Bhuiyan about his lower back pain on 31 January 2016, was because he had joined a gym but found that he could not tolerate the gym work as it was causing him “significant suffering”. He said that in that context he needed a certificate certifying that he was in pain, so that he could get a refund on his membership;[74]
[74]TT21-22
(s)it was suggested to him that the medical notes of the Pakenham Clinic disclose that from September 2016 onward, he did not report any back pain to his doctor. He agreed with this proposition and gave a lengthy answer, the gist of which was that throughout this period, he was self-managing his pain and receiving massages from his wife at home. He also said that his general practitioner already knew about his back pain during that period, so there was no need to tell her;[75]
[75]TT23-24
(t)when asked why he did not tell Dr Bhuiyan that he had had to stop work because of his back symptoms in 2017 he said: “… I never thought … that she gonna get me any job or something …;”[76]
[76]TT24-25
(u)when pressed about this matter again he gave a similar answer to the effect that the doctor was not going to get him a job and he was managing the pain “all by myself”;[77]
[77]TT25-26
(v)when it was put to him that his back pain did not interfere with his ability to work as a stable hand he responded: “I’ve got two kids to look after, and then I went back to the stables and do that … the duties … need a lot of physical … work. So my back and leg [would] restrict me doing that, so I … tried to go back again in the racing because that’s what I love the most. Then I went back to … the next stable … for a week or so, and I couldn’t manage that and I have to move on … so then I applied for … driving trucks …”;[78]
[78]T25-26
(w)he agreed that he is getting better pay as a truck driver than he would as a stable hand. He said that even this work, which is better because it has less physical lifting and physical work than being a stable hand, “causes ongoing problems”;[79]
[79]T26, L9-31
(x)he agreed that throughout 2018 there was no record in the medical notes that he complained of back pain to his general practitioner. He reiterated that his general practitioner already knew about his back problem and that he was self-managing that problem at home “doing the exercise and … taking the medications…”;[80]
[80]T27, L2-27
(y)he agreed that his doctor had prescribed him Celebrex in March 2019, because of lumbar pain;[81]
[81]TT27-28
(z)he agreed that he had been prescribed OxyContin on 28 May 2019 by Dr Bhuiyan. He denied that the reason that he had obtained that medication was because he was about to initiate his claim and had consulted lawyers Slater & Gordon. He said that he had been seeing Slater & Gordon since 2014 and they had been managing his case since that time;[82]
[82]TT29-30
(aa)he said that he had been prescribed OxyContin again in February 2020;[83]
[83]T30, L22-30
(bb)he denied that for interstate travel, the practice of him travelling on a Thursday and resting until the Sunday, is usual industry practice. He said that usually a driver would travel on a Thursday night, arrive on a Friday morning, drop off the horses and then leave to come back to Melbourne, returning back to Adelaide on the Sunday night. By comparison, his employer allows him to go on the Thursday night, rest on Friday all day, rest on Saturday and come back on Sunday afternoon. During this period he stays in a motel which is booked for him on the Friday and Saturday night;[84]
[84]T31, L5-31
(cc)he was asked why he had volunteered for a driving trip for his employer to Perth. In response he said: “… I need the living because if there’s no work … then you have to get what you get … I got two kids and for the survival … when I can’t meet my life [obligations] and then I try … to do the Uber, sometimes to do any work which I can get …”;[85]
[85]T32, L7-26
(dd)he said that while his work driving the trucks involves loading the truck and leading the horses in, “mostly the [strappers] are with me … loading the horse. Always the strappers are with the horses. They’re loading the horses, and when I get to the destination they take their horses off … .” When asked whether when he gets to the destination he unloads the horses, he replied: “No”. When asked if he ever unloaded horses, he replied: “Yes”;[86]
[86]TT32-33
(ee)he agreed that horses can be somewhat unruly and flighty. It was put to him that the reason that he felt able to unload the truck on some occasions was because he felt comfortable in his ability to handle a flighty horse. He denied this and said that it was because “… I’m so natural with the horses … it’s about the experience, what I have over the years … I’m … so comfortable with them”. It was put to him that it was not about his comfort with the horses but because his back did not interfere with his work. To this he replied: “… back does interfere …”;[87]
[87]T33, L3-17
(ff)when pressed in relation to this matter, the plaintiff explained that after travelling 12 hours from Melbourne to Adelaide, the horses are “… quiet as [a] lamb … they are pretty well-trained horses which we [are] doing.” He also said that mostly it is the strappers who are loading and unloading the horses “… and if any horse is naughty or trying to be flighty … [or nervous], mainly the three people come and handle them …”;[88]
[88]T33, L18-29
(gg)it was suggested to him that he does assist in the loading of horses from racetracks to bring them home. He agreed with this proposition and said: “I can’t deny because for that job I need to … have some kind of assistance. Even I’m suffering from my pain and the restriction what I have, but I have to move forward and do it because I need a job …”;[89]
[89]TT33-34
(hh)he was shown a further video clip taken in October 2019. He agreed that he was depicted in the video driving a truck, walking with a horse in a paddock and holding the rein of a horse that he had taken from the back of the truck, then handling that horse. It was suggested to him that nothing in that video identified any restriction in doing those tasks. He replied: “… the horse which was … the naughty horse you see the other guy was handling it and this was a pony the retired like horse which is quite old and I am handling that horse and that’s … quite easy with my experience …”;[90]
[90]T35, L1-19
(ii)he maintained that in this video he was walking with a limp;[91]
[91]T36, L10-13
(jj)it was suggested to him that when he has told doctors that he has a limp or a “big limp,” he is overstating that matter to those doctors. He denied this proposition;[92]
[92]TT36-37
(kk)he denied that he had reported to Mr Thomas Kossmann that he had pain in his ankle. He said that Mr Kossmann had asked him to show him over the video the movement that he had in his ankle. He said that he had told Mr Kossmann that the pain in his legs goes all the way through to his toes. He said that he does not have any restriction of movement in his left ankle: “No my left ankle is fine …”;[93]
[93]TT39-40
(ll)when pressed about this matter he said: “… no, please … that’s not right, that I’m complaining for my ankle …”;[94]
[94]T40, L14-31
(mm)he agreed that he had complained to Mr Kossmann about pain in his left knee: “… that’s accurate because … these … bulges are just about 2 inches from my knee and been giving me significant problem in my knee …”;[95]
(nn)he said that walking and exercise gives him problems in his knee. He agreed that it swells his knee. He agreed that the problems are exacerbated if he is walking a lot. He agreed that the problems with his knee interferes with his ability to ride a horse: “… absolutely. I can’t bend it proper. Not [just] the knee, back as well …”;[96]
(oo)he agreed that his knee problems prevent him from running;[97]
(pp)he disagreed that his knee pain is his predominant pain. It was put to him that he had put on weight because of his inability to run and walk due to knee pain. While he agreed that he had put on weight, he did not respond to the question in terms of what was the cause of that;[98]
(qq)he agreed that he had had difficulties with sleep since the accident because of his pain. He maintained that it is his back pain that wakes him up. He said that when he takes OxyContin, he sleeps very well;[99]
(rr)it was put to him that in fact his sleep is fine and that what he had sworn to in his affidavit was an embellishment of matters. He denied this proposition;[100]
(ss)he agreed that he had told Mr Kossmann that he felt he had become depressed. When asked if he was receiving any treatment for depression he said that he was trying to do yoga and to meditate. He said that he is “coming better now, but I had a long term problem with that …”;[101]
(tt)he agreed that he had obtained benefit from treatment with his chiropractor in 2019. When asked why he was not still seeing the chiropractor, he said: “because chiropractors as so expensive, okay …”;[102]
(uu)it was suggested to him that if his back condition was troubling him as much as he said that it was, he would be attending the chiropractor regularly. To this he said that he only goes to the chiropractor when “it’s really significant that I can’t even get up … when it really flares up and I can’t do anything, then I don’t have that much money to spend and I go to them and they try to do their best and get it going again …”;[103]
(vv)he was asked whether or not he had ever told his general practitioner that at times he has difficulty getting up. He said that he had. He was unable to provide an explanation for why this was not recorded in the medical notes. He agreed that Dr Bhuiyan was the perfect person to tell about his condition.[104]
[95]T41, L14-18
[96]T42, L13-25
[97]TT42-43
[98]T43, L7-16
[99]T43, L17-31
[100]TT43-44
[101]T44, L6-11
[102]T44, L14-20
[103]TT44-45
[104]TT45-46
Medical evidence
33 There were numerous medical reports contained in the tendered materials.
34 Both sides filed reports from the medico‑legal experts. A precis of the relevant medical material is set out below.
The Plaintiff’s medical evidence
35 The plaintiff was seen by Professor Richard Bittar, neurosurgeon and spinal surgeon, on 16 March 2015. In a report of the same date, Professor Bittar reported that the plaintiff:
“…had his S1 nerve sheath injection and this certainly offered him a significant benefit for a day or so in terms of his left leg pain. This confirms that the left S1 nerve root is at least contributing significantly to that aspect of his symptomatology.
He does have quite significant ongoing back pain and his leg pain has returned …
I have discussed with him the option of undergoing a left L5/S1 microdiscectomy with the aim being to improve his left-sided symptoms. I have discussed the risks of surgery … This has certainly convinced [the plaintiff] that he would prefer to have the medial branch blocks targeting the L5/S1 joints rather than heading directly down the surgical path ... .”[105]
[105]Ex P1, p39
36 On a referral from Professor Bittar, the plaintiff was reviewed by Dr McCallum in 2014. Dr McCallum noted that following a horse-riding accident in May 2013 and the resultant surgery, the plaintiff recovered well, but after decreasing his analgesics experienced a numb lateral calf and lower back pain. Dr McCallum noted that the plaintiff’s lower back pain was in the lumbosacral area and that it “goes to his toes occasionally [and gives him] pins and needles”. At that time, the plaintiff described the pain as being 5 out of 10. Dr McCallum noted that when the lower back pain gets worse it can be 7 to 8 out of 10. When the pain is at this level, the plaintiff struggles to walk and to work. The plaintiff reported at that time that the pain was made worse with sitting and after doing hydrotherapy and gym work in the following days. He said that when he sits for fifteen minutes, his lower back pain gets worse, that standing in one spot is very difficult and that driving is difficult due to lower back pain.
37 Dr McCallum referred to the fact that an MRI scan from January 2014 showed “bilateral subarticular stenosis at L5/S1 with some S1 nerve root compression”.[106] He also referred to the fact that a scan from 20 September 2014 showed a “shallow L5/S1 disk protrusion, congenitally short pedicles, and contact with the left S1 nerve root”.[107] Dr McCallum thought that the plaintiff’s back pain may be musculoskeletal in nature. He also thought there could be a contribution from facet joint arthropathy triggered by the accident. He noted that facet joint arthropathy does not need to be severe radiologically, in order to cause significant lower back pain. Lastly he noted that the plaintiff was at that time, suffering from radicular pain which appeared to be in the left S1 distribution.[108]
[106]Ex P1, p37
[107]Ex P1, p37
[108]Ex P1, p37
38 In a report dated 17 November 2015, Dr McCallum essentially repeated the findings that he had made in the earlier report. He noted that he had, since his last interaction with the plaintiff, performed a left-sided S1 nerve root injection of a local anaesthetic and steroid. The plaintiff had experienced a short but positive response to this procedure. At that time, Dr McCallum thought that the plaintiff would be a candidate for pulsed radiofrequency of this nerve. He thought that the plaintiff was likely to remain quite severely disabled by his pain into the future.[109]
[109]Ex P1, pp46-47
39 The plaintiff’s general practitioner, Dr Jim Demirtzoglou, noted that the plaintiff had been attending his clinic since 15 April 2014. In a report dated 8 May 2015, he said that the plaintiff had sustained a left femur fracture and lower back injury while working as a horse trainer while interstate. He noted that while the left fractured femur had now healed, the plaintiff was still enduring ongoing lower back pain at that time. He said that the plaintiff continues to have lower back pain radiating to his left lateral calf with occasional pains radiating to his left toes. Dr Demirtzoglou said that due to his back pain, the plaintiff cannot walk for more than 500 metres, cannot stand for long periods in one place, cannot sit for long periods and cannot drive long distances. At that time, Dr Demirtzoglou thought that the plaintiff’s prognosis was poor.[110]
[110]Ex P1, p41
40 The plaintiff was examined for medico-legal purposes by Mr Thomas Kossmann via a videolink due to the COVID-19 pandemic. In a report dated 16 April 2020, Mr Kossmann reported that the plaintiff told him that he continued to suffer from pain in his lower back. He noted that an MRI scan of the lumbar spine on 22 January 2014 showed that the plaintiff was suffering from “disc desiccation at the L5/S1 level with loss of height and a posterior annular fissuring”. Mr Kossmann noted that the radiologist described a gentle associated irregular disc bulge, contacting and displacing both traversing S1 nerve roots with a possible compression on the left side.[111] Mr Kossmann said that the plaintiff’s present complaints included pain in his lower back, radiating into both of his legs. He said that the plaintiff gets numbness and then has difficulty walking.[112] In Mr Kossmann’s opinion, it was impossible to tell for how long the plaintiff would be able to continue working. He said that the plaintiff has ongoing pain issues particularly affecting his back. In particular, he said:
“…I believe that [the plaintiff’s] work is not ideal and that he should avoid any physically demanding work, in particular, work where he has to walk long distances, on uneven ground, upstairs/downstairs, on inclines/declines, climb up and down ladders, kneel, squat or carry +heavy items weighing more than 5kg. In my opinion, this incapacity will continue for the foreseeable future.”[113]
[111]Ex P1, p49
[112]Ex P1, p50
[113]Ex P1, p55
41 In Reasons for Opinion provided by a Medical Panel dated 28 June 2016, it was noted that on examination, a one-centimetre discrepancy was measured between the length of the plaintiff’s left and right legs. There was also noted to be “1cm of atrophy of the left thigh”.[114]
[114]Ex P1, p28
42 As referred to by Mr Kossmann, an MRI report dated 22 January 2014 revealed that:
“… [at] L5-S1 there is disc desiccation with loss of height and posterior annular fissuring. Gentle associated irregular disc bulging. Contact and displacement of both transversing S1 nerve root[s] with likely mild compression on the left. Exit foramen remain satisfactory … .”[115]
[115]Ex P1, p33
The Defendant’s medical evidence
43 On 26 May 2014, the plaintiff was examined for medico-legal purposes on behalf of the defendant by Associate Professor Bruce Love, consultant orthopaedic surgeon. As a result of that assessment, in a report dated 28 May 2014, Associate Professor Love expressed the opinion that the plaintiff was suffering from lower back pain which had its origin in a soft-tissue injury. He formed this view in light of what he described as “the absence of obvious findings on examination and plain radiology”. He also noted that the plaintiff had suffered a fracture of the left femur which had united satisfactorily, but which had left the plaintiff with permanent discomfort and weakness in his left leg. He was of the opinion that the fall from the horse as described, was the sole cause of the plaintiff’s condition. He thought that the plaintiff would never return to stable or track work and noted that the plaintiff was at that time studying a nursing degree in pursuit of a change of career. He thought that the plaintiff could do work in an occupation that does not involve prolonged standing, repeated bending and stooping or heavy lifting.[116]
[116]Ex D1, p16-17
44 In a further report dated 17 March 2015, Associate Professor Love noted that the plaintiff was still complaining of lower back pain and generalised pain into both legs. He noted that Professor Bittar had recommended a facet-joint injection as a precursor to possible surgery as a remedy for the plaintiff’s lower back pain. Associate Professor Love, at this time, noted the existence of a report suggesting evidence of left S1 nerve root compression with subarticular spinal stenosis at the L5-S1 level. He offered to provide a supplementary report in relation to the MRI films, if those films were supplied to him. He offered no further opinion in relation to the plaintiff’s lumbar spine injury at that point in time, save to confirm his view that the injury to the plaintiff’s leg, and also to the lumbar spine, were contributed to by the accident.[117]
[117]Ex D1, p23-24
45 In a report dated 6 May 2015, Associate Professor Love had not been supplied with the MRI images and thus expressed no further view in relation to the origin or nature of the plaintiff’s lumbar spine pain. He had been at that time shown surveillance dated 9 January 2015, which he said showed the plaintiff walking in an unimpeded manner without a limp and without any obvious restriction of spinal or lower-limb dysfunction. Despite this, he commented that “[i]t is obviously conceivable that this man’s back condition is a consequence of the horse riding accident but my judgement from the video surveillance is that he has made an excellent recovery”.[118]
[118]Ex D1, p28
46 The plaintiff was examined for medico-legal purposes on behalf of the defendant by Mr Michael Shannon, orthopaedic surgeon, on 29 March 2016. In a report dated 31 March 2106, Mr Shannon expressed the opinion that as a result of the accident, the plaintiff had suffered a fractured shaft of the left femur which had been treated surgically, and a soft-tissue injury to his lumbar spine. He thought that the prognosis for the leg fracture was “excellent”. He thought that the prognosis for the lower back pain was “somewhat uncertain”.[119]
[119]Ex D1, p33
47 Mr Shannon was of the view that the nature of the fall from the horse could well have aggravated pre-existing lumbosacral disc degeneration. He thought that the plaintiff demonstrated some genuine restriction of flexion and extension through his back.[120]
[120]Ex D1, p34
48 The plaintiff was examined most recently for medico-legal purposes by Mr Michael Dooley, orthopaedic surgeon, on behalf of the defendant. That examination took place on 23 March 2020. In a report dated 8 April 2020, Mr Dooley noted that when he presented, the plaintiff walked with a “slight left sided limp”.[121] He expressed the opinion that in the accident, the plaintiff had sustained a closed fracture of the mid to lower shafts of the left femur. He said this was treated in the usual way with closed reduction and intramedullary fixation with a crossbolt. He noted that the fracture had gone on to solidly unit in time. He said that it had probably healed with a “very slight shortening”. He noted that as he mobilised following surgery, the plaintiff became aware of lower back pain and of pain affecting his lower limbs. The plaintiff had undergone extensive investigation and treatment in relation to his lumbar spine symptoms. Mr Dooley noted that radiologically:
“… he has naturally occurring degeneration of the lumbosacral disc with a reduction in water content, some fissuring of the posterior annulus and mild disc bulging. Given the described mechanism of [the plaintiff’s] injury, I believe that in the incident he also sustained a soft tissue injury to his lumbar spine that has involved some aggravation of underlying degeneration at the lumbosacral level. Clinically there is mild to moderate restriction of active range of motion of the lumbar spine …[122]
… From an orthopaedic point of view, I would expect [the plaintiff] to note some ongoing intermittent low back pain and some intermittent lower limb pain. I would not expect his orthopaedic condition to deteriorate over and above the natural evolution of any underlying degenerative disc disease … .
… I believe [the plaintiff] … would struggle with heavy physical work or work that involved a lot of bending, lifting and manoeuvring.”[123]
[121]Ex D1, p42
[122]Ex D1, p43
[123]Ex D1, p44
The issues
The Plaintiff’s credit
49 Attempts were made to discredit the plaintiff during cross-examination. In particular, it was suggested to the plaintiff that he had a pre-existing back condition, and that he had possibly sustained a back injury in an assault that had occurred since the accident. As set out above, in relation to both incidents that were put to him, he denied this suggestion. No evidence was called to refute the plaintiff’s evidence in relation to these matters.
50 Video surveillance of the plaintiff was shown to the Court of the plaintiff walking in a car park and around some shops in January 2015. As set out above, the plaintiff was cross-examined in relation to this surveillance. In particular, it was suggested to the plaintiff that the video surveillance did not demonstrate evidence of any discomfort in the way that he was moving at the time the video was taken. The plaintiff agreed with this proposition, but said that he was “uncomfortable” when he was moving as shown on the video clip. It was also put to the plaintiff that neither of the video surveillance clips showed him walking with a limp. In response, the plaintiff insisted that he does walk with a limp. In this regard I note that Mr Dooley observed during an examination of the plaintiff that “he walks with a slight left sided limp ...”.[124] I also note the evidence of Mr Dooley that the fracture of the left leg had healed with a “very slight shortening” of that leg. Lastly, I note that in the reasons of the Medical Panel, on examination, a one-centimetre discrepancy was measured between the length of the plaintiff’s left and right legs. There was also noted to be “1cm of atrophy of the left thigh”.[125]
[124]Ex D1, p42
[125]Ex P1, p28
51 The plaintiff was pressed about his lack of attendance at his general practitioner over the years in relation to his back pain. In response to this, he said that he was “self managing” his pain at home, taking medication as required and at times, receiving massage from his wife. When queried about whether he was being truthful when he told Mr Shannon that he was taking Endone and Panadeine Forte, he agreed that he had not been prescribed the Endone at that time, but explained that he had some left over from an earlier prescription. He said that he obtained Panadeine Forte in bulk when he went to India. He said that he had received two prescriptions for Oxycodone in the past year.
52 In relation to his continuing employment, it was suggested to him that he had “no trouble” working as a stable hand. He disagreed with this proposition and said that when he was doing this job, it aggravated his pain, especially his back pain. He said that he kept working because he needed the money to support his family. It was suggested to him that if he was really experiencing the levels of pain and discomfort to which he deposed, he would not be engaging in lengthy periods of truck driving. In response he repeated that he needed the money to support his family. The plaintiff also gave evidence in his affidavits that his employer made particular arrangements, especially on the interstate trips, to try to accommodate the plaintiff and allow him to manage his pain. The plaintiff was cross-examined in relation to this matter and it was suggested to him that the arrangements made for him were not unusual. He strongly denied this assertion and explained that quite different arrangements exist for other drivers on interstate trips.
53 It was suggested to the plaintiff that when he gets to his destination, he assists with loading and unloading horses. He agreed with this proposition and explained that the strappers will usually help him. The video surveillance that was shown to the plaintiff, was not inconsistent with the plaintiff’s answers in this regard.
54 Having had the benefit of observing the plaintiff while he was giving evidence to the Court, I formed the view that he was a cooperative witness who appeared to be doing his best to give accurate responses to the questions asked of him. During cross-examination, he gave his evidence openly and without embellishment. He made concessions where necessary. Many of these concessions were adverse to his interests. His explanations were cogent and clear. I accept the evidence which the plaintiff gave in relation to each of the matters set out above. In particular, on the basis of the independent medical evidence as to the discrepancy in measurement of the length of the plaintiff’s left and right legs, together with the observation of him walking with a limp, I accept the plaintiff’s evidence in relation to the residual weakness in his left leg and the fact that he suffers from a limp as a result of the accident.
55 I find that the plaintiff’s account of events and his injuries has remained consistent throughout the period in which he has seen his treating medical practitioners, consulted with the medico‑legal assessors and provided evidence to this Court. The content of the medical records and the medico‑legal reports corroborate the plaintiff’s account of events.
56 After a consideration of all of the evidence, particularly the evidence of the plaintiff, I consider that he was a credible witness, in the sense of being a truthful person. At no time did I gain the impression that he was attempting to mislead the Court or to exaggerate the consequences of his symptoms.
Stoic plaintiff
57 I also formed the view that the plaintiff is extremely stoic in relation to his condition. An analysis of the evidence demonstrates that he has suffered constant pain since the accident in May 2013, and has endured extensive medical treatment, which has caused him additional pain and disability.
58 Despite this, I find that he has made a concerted effort to return to work and at one stage, to retrain as a nurse, despite these activities causing him significant, daily pain.
59 I find that he has attempted to maintain his fitness, even though these attempts cause him pain. I find that he continues to try to engage with his children and to remain mobile, even though those activities cause him pain.
Compensable injury
60 The details of the occurrence of the injuries are not in dispute.
61 Similarly, there is no dispute that the plaintiff is suffering from injuries as a result of the accident that are organic in nature.
62 On that basis, I am satisfied that the plaintiff suffers from the following injuries:
(a) a traumatic injury to his lumbar spine in the form of a central disc protrusion with annular tear at the L5-S1 level, contacting the S1 nerve roots bilaterally; and
(b) a fracture to his left femur, which was surgically repaired.
Is the compensable injury permanent for the purposes of the Act?
63 Having considered the relevant reports, in particular the reports from Mr Kossmann,[126] Dr Demirtzoglou,[127] Dr McCallum,[128] Mr Shannon[129] and Mr Dooley,[130] together with the reasons of the Medical Panel dated 28 June 2016,[131] I find that the plaintiff is likely to suffer from the consequences of the injuries that he sustained in the accident for the foreseeable future. Given this, I find that these injuries are permanent for the purposes of the Act.
[126]Ex P1, p55
[127]Ex P1, p41
[128]Ex P1, p47
[129]Ex D1, p33 and p34
[130]Ex D1, p44
[131]Ex P1, p29
Are the consequences to the Plaintiff of the accident “serious”?
64 Having regard to all of the relevant evidence, I find that as a result of the injury to his spine alone, the plaintiff suffers from the following consequences:
(a)constant back pain which is often worse after activity. The back pain which he experiences radiates into his buttocks and into his legs, worse on the left side. He also experiences numbness in his left foot and toes;
(b)aggravation of the back pain produced by prolonged sitting, bending, lifting, squatting and any awkward manoeuvring;
(c)the need to take frequent medication in the form of Nurofen, Panadol, and Oxycontin. In the affidavit material and during the viva voce evidence, no attempt was made to apportion what amount of medication is taken for back pain, and what, (if any), medication is taken for pain which arises from the repair of the left femur fracture. Doing the best that I can and having regard to the logic of events,[132] in particular, the plaintiff’s evidence that his back pain is the worse problem for him, and that it is this pain that interrupts his sleep at night, I am satisfied that the majority of this medication, and in particular the Oxycontin, is taken by the plaintiff for his back pain;
[132]Fox v Percy (2003) CLR 118 at 129, paragraphs [30]-[31]
(d)an inability to perform any heavy domestic activities such as mopping and/or vacuuming;
(e)the need to receive frequent massage to manage his day-to-day pain;
(f)the need to obtain chiropractic treatment when “flare ups” of his back pain occur;
(g)interrupted sleep, where the plaintiff wakes up during the night several times with increased back pain, resulting on many occasions in only three to four hours of sleep;
(h)fatigue resulting from a lack of sleep, causing him to be irritable and moody;
(i) back pain caused by difficulties with performing his employment, necessitating modification of his duties. He continues to work despite the back pain that he experiences, because he needs the money to support his family;
(j)a permanent loss of his ability to work more directly with horses in the future. At the time of the accident he had hoped to continue working as a track rider or stable hand and had intended eventually to commence his own horse breaking facility. This opportunity is now lost to him.
65 In Haden Engineering Pty Ltd v McKinnon,[133] the Court of Appeal made observations about the task of evaluating the pain and suffering consequences of an injury. In particular, Maxwell P observed that the consequences of pain and suffering encompassed both the plaintiff’s experience of pain, as well as the disabling effect of the pain on the plaintiff’s physical capabilities (including capacity for work) and enjoyment of life.[134] Part of the process is for the Court to assess the intensity of pain which the plaintiff experiences, together with the frequency and duration of pain episodes. As set out above, ultimately, the question of whether an injury satisfies the relevant test under the Act is one of impression or value judgment. The weight to be attached to the plaintiff’s account of the pain experienced will depend upon an assessment of the plaintiff’s credibility.[135] It has been observed by the Court of Appeal that once it is accepted that the appellant is a truthful witness and especially where the plaintiff has been found to be stoic, there is no reason to reject his ongoing descriptions of the pain suffered by him.[136]
[133](2010) 31 VR 1
[134]Haden (ibid) at paragraph [9]
[135]Haden (ibid) at paragraph [12]; see also Halpin v Wilson Transformer Company Pty Ltd [2012] VSCA 235 at paragraph [44]
[136]ibid
66 I have already made observations about the plaintiff’s demeanour and presentation in Court. In particular, I have found that the plaintiff was both a witness of credit and also stoic in his presentation and attitude to managing his injuries.
67 An analysis of the evidence clearly demonstrates that by reason of the consequences of his spine injury alone, many aspects of the plaintiff’s life have been adversely affected.
68 In particular, the plaintiff endures permanent, daily pain in his back, which causes significant discomfort and restrictions in various aspects of his life. He is unable to sit, bend, lift, squat or perform any awkward manoeuvre without aggravating his back pain. His back pain causes him constantly interrupted sleep, which in turn has impacted upon his mood. The level and nature of his back pain is such that he is frequently required to engage in pain relieving activities such as taking frequent medication, massage and attending the chiropractor. He would like to attend the chiropractor more frequently, but he is unable to afford to do so. Because of his back pain, his ability to work has been adversely impacted on a daily and continuing basis. He has had to modify the duties he performs. Even with such modifications, he still requires assistance with some of the tasks he is allocated. His employer has been extremely understanding of the plaintiff’s situation and presently allows the plaintiff to perform his driving duties differently to other drivers. The plaintiff’s dream of working more closely with horses in the future has been dashed forever. All of the medical experts agree that the plaintiff can never again perform the heavy manual work which he engaged in as a track rider and/or stable hand, prior to the accident. This is a devastating blow for the plaintiff.
69 The fact that after the accident, the plaintiff has been prepared to keep working, is not a matter that tells against the granting of his application. To use the words of Nettle J A in Dwyer v Calco Timbers Pty Ltd (No 2):[137]
“… it would be unfortunate, and in…[our] view wrongheaded, if in future such an applicant were treated less favourably than another who, being of less strength of character, simply resigned himself to his injury.”
[137][2008] VSCA 260
70 Taking into account all of the evidence, I am satisfied that the pain and suffering consequences of the plaintiff’s injury to his spine alone are “very considerable” and certainly more than “significant” or “marked” and therefore satisfy the relevant test for “serious injury” as set out in the Act.
71 Given this finding, I am not required to consider whether the consequences of the injury to the plaintiff’s lower left limb constitute a serious injury for the purposes of the Act.
Conclusion
72 For the reasons set out above, I am satisfied that as a consequence of the accident which occurred on 9 May 2013, the plaintiff has suffered a “serious injury” to his lumbar spine, as that term is defined in the Act. The application is granted.
73 I will hear the parties in relation to the question of costs.
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