Board v Allianz Australia Workers Compensation Vic; Limited and Anor
[2010] VCC 1023
•3 September 2010
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT WARRNAMBOOL
CIVIL DIVISION
Case No. CI-09-04571
| NICHOLAS BOARD | Plaintiff |
| v | |
| ALLIANZ AUSTRALIA WORKERS COMPENSATION VIC LIMITED | First Defendant |
| And | |
| MIDFIELD MEAT INTERNATIONAL PTY LTD | Second Defendant |
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| JUDGE: | HIS HONOUR JUDGE BOWMAN |
| WHERE HELD: | Warrnambool |
| DATE OF HEARING: | 2 & 3 August 2010 |
| DATE OF JUDGMENT: | 3 September 2010 |
| CASE MAY BE CITED AS: | Board v Allianz Australia Workers Compensation Vic Limited & Anor. |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 1023 |
REASONS FOR JUDGMENT
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Catchwords: Accident Compensation Act 1985 – s.134AB – application in respect of pain and suffering damages only – injury to low back – little recent treatment – minimal medication – no referral to a specialist – plaintiff performing, as least temporarily, suitable light work in well-paid position – single man with no immediate family involvement – whether burden of proof has been discharged.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D Brookes SC with | Stringer Clark |
| Mr N Bird | ||
| For the Defendants | Mr P Scanlon QC with | Lander & Rogers |
| Mr P Jens | ||
| HIS HONOUR: |
General background
1 This matter comes before me by way of an application pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985, hereinafter referred to as “the Act”. The plaintiff seeks leave to bring proceedings in relation to pain and suffering damages only. His application in relation to pecuniary loss damages was abandoned shortly after the commencement of the matter. In bringing his application, the plaintiff relies solely upon sub-paragraph (a) of the definition of serious injury found in s.134AB(37) of the Act. The injury under consideration is one to the lower back, and it is alleged that this occurred in a specific incident in the course of the plaintiff’s employment with the defendant on approximately 9 May 2003. Whilst there are two defendants named in this matter, their interests overlap entirely and henceforth I shall refer only to “the defendant”, meaning Midfield Meat International Pty Ltd by which entity the plaintiff was employed and in the employment of which he allegedly suffered the relevant injury and its consequences.
2 I am familiar with the numerous decisions of the Court of Appeal which bear upon applications such as this and shall endeavour to apply the principles set out in them in coming to a decision in this case. I shall not list such cases here but shall refer to any cases which I consider to be specifically relevant in the course of this judgment. It was not argued but that the plaintiff bears the burden of proof.
3 Mr D Brookes SC with Mr N Bird of counsel appeared on behalf of the plaintiff. Mr P Scanlon QC with Mr P Jens of counsel appeared on behalf of the defendant. The plaintiff was called to give evidence and was cross-examined. The balance of the evidence was documentary in nature and was tendered by consent, which was a most sensible and cost-effective manner in which to run the case. Happily the showing of surveillance, which was not particularly contentious and which did little or no damage to the plaintiff’s credit, was truncated. It had no impact upon the outcome of this case, and I shall not refer to it again.
Factual background
4 The following findings of fact are made for the purposes of this application and are not intended to be findings which are in anyway determinative in relation to issues such as negligence, the quantum of damages, entitlement to statutory benefits and the like.
(i) The plaintiff 5 Essentially I found the plaintiff to be a straightforward witness whose answers at times not only did not smack of embellishment but did little to advance his cause. Certainly he could not be accused of being an advocate in his own interests. However, at times he was a somewhat vague historian. Mr David Brownbill, consultant orthopaedic surgeon, who examined the plaintiff on behalf of his solicitors described the plaintiff as being cooperative and without embellishment, but with a little difficulty recalling precise details. I agree with this summation. Dr Michael Bowles, occupational physician, who examined the plaintiff on behalf of the defendant, described him as pleasant and affable, and I would also agree with that. The plaintiff was also examined at the request of the defendant by Professor Vernon Marshall, who commented that the plaintiff gave his history in an open and co-operative manner. Again I agree, although it may be, as a historian, he did not do himself justice. In summary, I am of the view that the plaintiff was a frank witness. Whilst he may not be the most reliable of historians, I accept his description of the symptoms, restrictions and consequences of injury which he has suffered and which he continues to suffer.
(ii) The plaintiff’s background, training and pre-injury employment 6 As leave is sought solely in relation to pain and suffering damages, the amount of detail required under this heading is less than might otherwise be the case. Suffice to say that the plaintiff is aged forty-nine years, having been born on 17 December 1960. He is a single man. He boards at the Caledonian Hotel in Fairy Street, Warrnambool. He left school during Year 11. He worked for a short period in a sporting goods business operated by his brothers, and then worked in various jobs in Victoria and Queensland, these being mostly as a labourer or as a trades assistant in the construction industry. He also ran errands for a solicitor, and received some payments for playing football.
7 Following a motor vehicle accident in 1987 whilst in Queensland, the plaintiff was absent from employment for a period before returning to live in Warrnambool. He then worked in two bottle shops (consecutively) before commencing work as a labourer with the defendant in 2000. The defendant conducts an abattoir at Warrnambool.
(iii) The injury of May 2003 (a) The state of the plaintiff’s health prior to May 2003 8 It is not suggested that the plaintiff suffered any lower back injury of note prior to 9 May 2003. He did suffer a motor vehicle accident of some significance in approximately 1987 whilst at the Gold Coast, and apparently fractured his C6/7 vertebrae at this time. He was off work for a considerable period, probably in excess of a year. The plaintiff appears to have made a recovery that is at least substantial from the neck injury. He has told Mr Brownbill that he made a full recovery without any ongoing pain, and gave a history to Professor Marshall of his neck now being “reasonable”. I can find no reference in any of the medical reports to ongoing neck-related symptoms or restrictions. There was no evidence of the plaintiff suffering any other injury of note prior to May 2003. He had been performing heavy work for some years. In those circumstances, there is no reason to believe that he was in anything other than good health at the time that he suffered the relevant incident of injury or to doubt but that the symptoms, restrictions and consequences from which he now suffers are related to any pre-injury incident.
9 Plain x-rays were taken on 29 January 2007. The conclusion of the radiologist was that there was evidence of muscle spasm in the lumbar column and degenerative changes with posterior slipping of L5/S1 with narrowing of the disc space and a grade 1 backwards slip of L5 on S1. The report of a CT scan of the lumbar sacral spine performed on 7 January 2008 refers to “a very, very minor central disc bulge” visible at the L5/S1 level but not distorting the thecal sac or displacing the S1 nerve root. The radiologist described the finding as being of doubtful significance. Otherwise, there are no references to any degenerative changes.
10 Insofar as there may have been any degenerative changes present in the plaintiff’s lumbosacral spine prior to 9 May 2003, and insofar as the injury sustained by the plaintiff on that date could be described as an aggravation (a proposition which was not vigorously argued and seems to me to be somewhat doubtful), I am of the view that any such degenerative changes were completely symptomless prior to 9 May 2003. Therefore, even if the injury is in the nature of an aggravation, the symptoms, restrictions and consequences which flow from it are the result of that injury. If it is an injury by way of aggravation, it is that aggravation in the sense of an aggravated condition which I shall assess, and, as stated, this embraces all relevant consequences.
(b) The injury of 9 May 2003 11 It is alleged that the plaintiff sustained the injury in question on 9 May 2003 when he was pushing sheep carcasses along a line into a chiller and was pushing more than the usual load – in fact, the load normally pushed by two men – due to the absence of a workmate. It was whilst doing this that he developed pain in his back.
12 The plaintiff attended upon Mr Grace, physiotherapist, on 12 May 2003, a history being taken of him injuring his back whilst working with the defendant. He was diagnosed as having a right L5/S1 disc prolapse. It is the plaintiff’s recollection that he saw the physiotherapist on a number of occasions, but the dates of these are not clear from the brief report of the Warrnambool Physiotherapy Centre. There is reference to the fact that the plaintiff had four more episodes of acute back pain, “many of which have been triggered by something as minimal as sneezing”. However, the impression given when the report is read as a whole is that these episodes occurred over the years as opposed to immediately following the initial incident. The plaintiff’s affidavit sworn 20 May 2009 would indicate that he also attended at the Warrnambool Medical Centre in May 2003 following the incident and was given painkillers. It would seem that he saw Dr Olesen.
13 Whilst the plaintiff reported the matter, it would appear that he kept on working, although he has claimed in his affidavit of 20 May 2009 that his back was never right after the incident. His back was prone to flare-ups without warning or reason thereafter.
14 In May 2005 the plaintiff attended again upon Mr Grace after an increase of symptoms. There appear to have been two incidents, one involving sneezing and the other when the plaintiff had to jump from one stand to a smaller stand whilst in the course of his employment with the defendant.
15 In 2006 the plaintiff suffered a tennis elbow injury to the right arm, this probably being work-related. He attended Dr Olesen at the Warrnambool Medical Clinic in this regard. The injury was to his dominant right arm. WorkCover certificates were issued. On 16 November 2006 he reported an aggravation of his back injury and certificates covering both that injury and the right elbow injury were issued for a period. It should be said, that between 13 May 2003 (when the notes of the Warrnambool Medical Clinic indicate that the plaintiff was “much, much better” with no leg pain and had not missed any work) and 16 November 2006, the plaintiff seems to have attended at that clinic on some five occasions for various matters, but there is no reference to any complaint in relation to his back.
16 On 16 November 2006 the plaintiff attended both in relation to his elbow but also complaining of right low back pain which apparently occurred one week previously. He saw Dr Stuart Smith who noted pain on the right side, slightly restricted straight leg raising apparently on that side, but no pain into the legs. It was at this time that certificates in relation to both conditions apparently commenced.
17 The plaintiff then commenced seeing Dr Smith on a much more regular basis. By my reckoning, the clinical notes reveal some six attendances on Dr Smith between 14 December 2006 and 31 January 2007 at which visits the condition of the plaintiff’s back and his symptoms received attention. Dr Smith noted such matters as spasm, lack of movement, “back still crook”, limited flexion and the like. On 28 December 2006, he noted “no referral”. By 4 January 2007, he noted further improvement and a return to work on light duties with no lifting above 10 kilograms and no repeated bending or stooping. Some referral was noted on 17 January, and on 31 January 2007 Dr Smith recorded that the plaintiff’s back was no better and that he was going to a chiropractor.
18 On 13 February of that year, Dr Smith again recorded that the plaintiff’s back was “crook” and he was attending the physiotherapist. By 9 March, the back had improved, but Dr Smith also noted a poor knee squat, extension being nil, and flexion to the mid-calf. Reflexes were recorded as being “ok”. On 5 April 2007, Dr Smith noted that the back and elbow were unchanged, although the primary reason for that visit of the plaintiff seems to have been bronchitis. On 2 May 2007, Dr Smith recorded that the plaintiff’s back was stable but he felt it when he coughed. Dr Smith noted for the second time “needs other employment”, although this may well have been because of a combination of symptoms in the back and in the elbow. On 30 May 2007, Dr Smith noted that “Midfield provide easy employment that he is able to handle”, and on 28 June recorded that the plaintiff was stable as long as he avoided other jobs.
19 The next attendance of the plaintiff upon Dr Smith or the Warrnambool Medical Clinic for any relevant matter would appear to have been on 25 September 2007 when it was recorded that his back was stable although it aches and that the elbows were not 100 per cent. Having attended for an irrelevant matter on 29 October 2007, the plaintiff attended upon Dr Rounsevell on 5 November 2007, and that doctor, apart from noting a chest complaint, recorded that the plaintiff was on light duties because of his back injury, but had been terminated by the defendant.
20 The plaintiff has sworn that he ceased work with the defendant because he was told that there was no more work for him, and he has expressed the belief that this was because of his back injury. I note that, for example, he also told Mr Brownbill that he ceased working because his employer would not keep giving him light duties.
21 It is apparent that Dr Rounsevell issued a medical certificate for the plaintiff in relation to his being off work and that further action was taken in this regard on 26 November 2007. On 18 December of the same year the plaintiff attended upon Dr Smith who noted that the plaintiff “has been finished” and also recorded a recent exacerbation that had settled within the week. I note that, in his affidavit of 20 May 2009, the plaintiff referred to an incident in November 2007 when he leaned into a wardrobe to pick up his shoes and had an exacerbation of back pain. Whilst that is stated to have occurred in November, it may be the incident referred to in Dr Smith’s note of 18 December. On 19 December Dr Smith organised a CT scan of the plaintiff’s lumbar spine. This was carried out on 7 January 2008. The only possible abnormality reported by Dr Rogan, radiologist, was as follows:
“At the L5-S1 level there is a very, very minor central disc bulge visible but this does not distort the adjacent thecal sac or displace the adjacent S1 nerve root. The finding is of doubtful significance. On bony windows again no bony abnormality is identified.”
22 On 4 March 2008 Dr Smith recorded that a recent exacerbation had settled. He also noted some discussion with the insurer concerning the plaintiff’s suitability for training and job access and the fact that the plaintiff was looking “at other courses”. However, he also noted “not fit for labouring”. The plaintiff attended again on 17 April when Dr Smith noted some possible occupations, namely driver, plant operator and traffic coordinator, which were described as being “all OK”. An entry of 15 May 2008 records that the fact that the plaintiff has to look at different employment, whilst that of 26 May refers to the fact that “Nicholas has been cleaning at Coles” but apparently the plaintiff was unable to drive a truck and “failed due to inability”. An entry of 12 June 2000 states that the cleaning was “light tidying”. On some of these occasions it is apparent that Dr Smith also created a letter, but whether or not this was a compensation certificate is not clear.
23 An entry of 9 July 2008 indicates that the plaintiff needed a Worker’s Compensation Certificate and was seeing the physiotherapist, Mr Grace. On 7 August 2008 he was not working, “Nor available”. On 2 September 2008 the plaintiff was looking at some type of job involving painting and, whilst his tennis elbow was good, it was noted that “back fluctuates”.
24 The entry of 1 October 2008 reads, inter alia, “No work. Walk. Encouraged to swim.” An attendance on 28 October was for other reasons and the only reference to the back is that there had not been any aggravation of it. On 4 December 2008, the plaintiff attended upon Dr Smith, the reason for the visit being described as “back pain”. Dr Smith seems to have taken or revisited the history of events in relation to the original occurrence of injury and events thereafter. I note that, on 10 December 2008 Dr Smith provided a report to the Accident Compensation Conciliation Service with a copy to the defendant’s insurer. It seems quite apparent from his notes and the content of that report that at least part of the time spent during the consultation on 4 December 2008 related to the gathering of information for the purposes of the report. Both the note and the report include reference to physical testing which revealed extension as being nil and the ability to squat being only approximately 25 per cent. Reflexes and strength were described as being “OK”. Dr Smith attached a copy of the CT report and expressed the view that he believed that the plaintiff’s problems related to the “L5-S2 disc” (sic). In that report, Dr Smith expressed the opinion that the plaintiff would have continuing back problems and outlined some of the difficulties in finding suitable employment for the plaintiff given his lack of education.
25 The next entry of any relevance in the clinical notes is that of 15 January 2009 when the plaintiff again attended for back pain. On this occasion Dr Smith again took something of a history of the plaintiff’s employment. He also recorded that the plaintiff was working as a spotter in relation to asbestos removal. This is consistent with what is contained in the plaintiff’s affidavit of 20 May 2009, in which he refers to having done five weeks work as a spotter with Western District Asbestos Removers, this work being performed in the earlier parts of 2009. Dr Smith’s note also records that the plaintiff was stable with no gait problems. A medical certificate and a letter seem to have been organised on this date.
26 The plaintiff attended again on 12 February 2009, the reason for the visit being recorded as back pain, and a letter was again created. Dr Smith noted that the plaintiff was working with asbestos, was not lifting and was coping as a spotter. On 12 March 2009 the plaintiff again attended with some urgency and incontinence problem. His back was recorded as being stable. A letter was created and he was referred elsewhere. On 9 April 2009 the plaintiff attended again, stating that he was doing some work which was not heavy and was coping with heights. He attended again on 12 May 2009 (the timing and regularity of these visits may be consistent with the obtaining of some sort of letters or certificates). On this occasion Dr Smith has recorded back pain, and also “back some minor probs”, also noting that the plaintiff’s condition was unchanged and he kept away from heavy labour. The plaintiff was back again on 10 June 2009 and Dr Smith has recorded that in the previous week the plaintiff had received physiotherapy because of exacerbation of his back pain. The plaintiff attended again on 9 July 2009 in respect of a certificate. On 6 August 2009 Dr Smith recorded that the plaintiff’s back had deteriorated and that he had been taped by Mr Grace the previous day. There was no referral of pain, strength and reflexes were satisfactory, but the plaintiff was unable to work.
27 On 20 August 2009 the plaintiff’s spine was described as being better, but with “no low lumbar movt starts flexion at about L2”. There was also no extension and the plaintiff was unable to slump and squatted with difficulty. There was no referral and reflexes and strength were normal.
28 On 16 September 2009 the plaintiff saw Dr Lee at the same clinic for a WorkCover certificate. That doctor recorded that the plaintiff was not doing much work at the moment, was starting light duties, and was not on painkillers. Dr Lee again saw the plaintiff on 21 October 2009 for renewal of his WorkCover certificate. The plaintiff also wanted a disability pension form filled in as his WorkCover was due to end. He was not working. The plaintiff apparently stated that he was keen to go back to work, and there was discussion of referral to a CRS program. Dr Lee recorded that the plaintiff’s back was generally okay, and only certain movements such as reaching up or down may aggravate it. The next entry in the clinical notes is by Dr Smith, and refers simply to back pain, this entry being on 16 November 2009. As shall be discussed, the plaintiff has attended at the Warrnambool Clinic twice this year.
29 There are two other matters of note contained in the medical records. One is that those at the Warrnambool Medical Clinic seem to have been issuing the plaintiff with certificates indicating he was fit for light work for a considerable period. Many described him as being fit for alternative light duties with no lifting of either 15 or 20 kilograms, no repeated lifting, no repeated bending or stooping. The other is a letter of 24 September 2007 from the defendant to Dr Smith indicating that Dr Wallin, who assessed the plaintiff on behalf of the defendant, indicated that a return to pre-injury duties would be likely to aggravate the plaintiff’s condition but he could continue on with light duties without aggravation. The defendant stated in its letter that it was unable to provide ongoing light duties and was not in a position to make the plaintiff’s current duties permanent. The defendant sought Dr Smith’s response as to whether the plaintiff would be likely to recover in order to perform these duties so that a decision could be made in relation to his continued employment. As stated above, the clinical notes reveal that the plaintiff’s employment with the defendant was terminated in or about November 2007. The correspondence from the defendant would certainly add weight to the plaintiff’s contention that it was the existence of his back injury which precipitated the termination of his employment.
30 Returning to the history of employment of the plaintiff, apparently at some stage in approximately May 2008 he undertook a few days work on a construction site. Subsequently, as stated earlier, the plaintiff worked as a spotter with Western District Asbestos Removers in 2009 but ceased performing that work because he claimed he was having difficulty climbing up ladders. It would also appear that such work was coming to an end in any event. The plaintiff freely admitted that, if Western District Asbestos Removers had offered him light duty work, he would have stayed on with that entity. However, he considered that eventuality to be unlikely. In 2009 the plaintiff also undertook some 15-16 days work for NC Labour Hire at the Warrnambool Hospital reconstruction, this work occurring between August and December 2009. On approximately 27 February 2010 the plaintiff commenced his present work as a tradesman’s assistant working at a power station installation at Mortlake. The employer is an international entity named Bilfinger Berger. This position is one which the plaintiff regards as particularly well paid, he receiving approximately $2,600 gross per week. He claims that the work is not difficulty, that others cover for him, and that he has regular rest periods. I might add that the plaintiff’s history of the employment in which he has engaged and the precise timing of these was not altogether clear.
31 The plaintiff’s present occupation is not only well paid but involves quite lengthy working hours. The plaintiff gave evidence that he gets out of bed at approximately 5am and arrives home close to 6pm each week day. On a Saturday he works shorter hours. The plaintiff’s actual time of commencing work at the Mortlake plant is 7am, and, on a weekday, he finishes at 4.50pm, but, of course, there is the time required for travelling back and forth between the Mortlake plant and Warrnambool. On a Saturday, the plaintiff commences work at 7am and finishes his duties at approximately 2.15pm. Thus, his actual working week would be something in excess of 50 hours plus travelling time.
32 Returning to the plaintiff’s attendances at the Warrnambool Medical Clinic, it would seem that he has visited that clinic only twice this year. The first occasion was when he saw Dr Smith on 7 January 2010. There is a reference to back pain and to the prospect of working at Mortlake as a “peggy”. The plaintiff’s work is described as “so-so”. There is also some discussion about marijuana and the plaintiff’s employment capabilities, particularly to the effect that he could do light truck work when the marijuana was out of his system. No medication was prescribed.
33 The only other attendance this year would appear to have been that of 6 April 2010 when the history recorded was that the plaintiff was working as a “tradie’s assistant” and that the work was easy. Otherwise, the attendance seems to have been in relation to an ear problem which the plaintiff was having. Again it would not seem that any medication in relation to the back injury was prescribed, and, as shall be discussed, the amount of prescribed medication which the plaintiff has been taking would seem to be small indeed.
34 At no stage has the plaintiff been referred to any specialist for treatment. Accordingly, the only diagnosis from a treating medical practitioner is that of Dr Smith. In his report of July 2007 he referred to a probable lumbar disc prolapse on the right side of L5/S2. In his report of 10 December 2008 Dr Smith referred to low back pain with no referral. He expressed the view that the plaintiff’s problems related to the L5/S2 disc. (Whether Dr Smith meant L5/S1 and S1/S2 is not entirely clear, but I have set out what is recorded in his reports.) Reporting on 20 August 2009, Dr Smith expressed the view that the CT scan revealed a disc lesion at L5/S1, although, as observed, the radiologist’s comments include reference only to “a very, very minor central disc bulge” not distorting the adjacent thecal sac or displacing the adjacent S1 nerve root, and being a finding of “doubtful significance”. In any event, Dr Smith still implicated a disc. Reporting again on 28 March 2010, Dr Smith expressed the view that the plaintiff was restricted from heavy labouring industry as that would cause exacerbations, but felt that the plaintiff was able to perform work such as he had in relation to the asbestos. He referred to mobility and being active assisting in the strengthening to the plaintiff’s back, and also observed that “ideally he should change his residential address and lifestyle”. Some of the clinical notes of Dr Smith include a reference to alcohol, and I assume that this is what lies behind his observation concerning change of address and lifestyle. There are also references to marijuana.
35 The plaintiff has been assessed for medico-legal purposes. At the request of his solicitors, he was seen by Mr John Henderson, orthopaedic and general surgeon. He expressed the view that the plain x-rays taken on 29 January 2007 were very abnormal as they revealed an almost complete loss of curvature of the lumbar spine, this being a mark of reflex muscle spasm from the back injury. Mr Henderson also referred to a very noticeable retrolisthesis of L5 on S1. The plaintiff told Mr Henderson that he had never had any leg pain, but only pain in the back. He also stated that his right-sided low back pain never went away completely. Mr Henderson reported that the plaintiff’s current treatment as at the date of his examination was hydrotherapy once a week, physiotherapy once a month, Pilates exercises at home, and the plaintiff stated that he was not taking any medication. Incidentally, the plaintiff did refer to some leg pain, but this seems to have occurred after the further incident in 2005 and not lasted for a particularly long period.
36 Mr Henderson expressed the view that an MRI should be done to assist in further clarification of the diagnosis. However, he felt that the plaintiff’s L5/S1 retrolisthesis was a feature of the 2003 injury. He referred to work as being a significant contributing factor to the development of the plaintiff’s present chronic low back strain injury and condition. Mr Henderson expressed the view that the plaintiff could not work as a labourer in an abattoirs or, for example, as a “brickie’s labourer”. He also expressed the view that the plaintiff would be never likely to return to heavy physical manual labouring work.
37 On 20 March 2008 the plaintiff was examined by Mr David Brownbill, consultant neurosurgeon, this examination being arranged by the plaintiff’s solicitors. Mr Brownbill took a history of low back pain which was present all the time, fluctuating in severity and worse with bending or prolonged sitting or standing. There was no leg pain or pins and needles, no weakness or numbness, and the plaintiff was able to use stairs. Testing of reflexes and for sensation revealed no abnormality. Apart from examining the plaintiff, Mr Brownbill seems to have had available to him the plain x-rays of 29 January 2007, but there is no reference to the CT scan of 7 January 2008. In any event, Mr Brownbill considered that, on probability, the plaintiff had suffered a lumbosacral intervertebral disc derangement and prolapse, and suggested that further scanning was required in order to confirm and determine the extent of damage. He considered that, in the future, the plaintiff would have to avoid activities involving heavy lifting, full spinal mobility, repeated bending or prolonged standing or sitting. He believed that the plaintiff would not be capable of returning to his pre-injury employment or to manual labour, and considered that the condition was stabilised and probably there would be ongoing pain in a fluctuating manner. He implicated the incident of employment, but repeated his view that further lumbar spine scanning was required.
38 Mr Brownbill again reviewed the plaintiff on 7 April 2010. The plaintiff gave a history of the jobs that he had been doing, including that of a traffic controller but only on one or two days a week. He then described the job which he had obtained as a tradesman’s assistant, which involved general light duties and some work as a spotter. The plaintiff also referred to a job which he had ceased because he could not cope with the carrying of corrugated roof sheets. As stated, the plaintiff’s history of employment is somewhat confusing. On this occasion Mr Brownbill had available to him the report of the CT scan. He noted that, upon examination, the plaintiff showed restriction of thoracolumbar spinal movements. There were no objective neurological abnormalities or signs of radiculopathy. Mr Brownbill then observed that a full assessment of the plaintiff’s lumbar spine would require MRI scanning. Of course, this has not been done. However, he still regarded the plaintiff as having suffered damage to the lumbosacral intervertebral disc and regarded his condition as stabilised. He did not consider that, in the future, the plaintiff would be able to return to manual labour, and listed some activities, such as heavy lifting, repetitive bending and the like, which the plaintiff should avoid.
39 The defendant has also had the plaintiff assessed for medico-legal purposes. He was seen by Dr Maurice Wallin, consultant in occupational health, on 13 March 2007. The essential purpose of the examination seems to have been to determine the plaintiff’s capacity for employment and to provide information about medical or other ongoing health services. Dr Wallin recorded that, as at the date of the examination, the plaintiff’s back was “very good” and he felt that the plaintiff was fit for normal duties, although his own doctor stated that he should not try those yet. At the time he was working on a close to full-time basis on light duties. The plaintiff referred to a flare-up which had occurred after coughing shortly prior to Christmas 2006. He also described various aggravating activities, such as sitting for a lengthy period of time. Strangely, Dr Wallin also recorded that the plaintiff had not yet fully recovered from the flare-up before Christmas 2006, and considered that the plaintiff could not cope with his normal duties (which contrasts with Dr Wallin’s earlier observation that the plaintiff was fit for normal duties). Also, Dr Wallin inspected the plaintiff’s plain x-rays of 29 January 2007. Further confusion follows, because Dr Wallin stated that those x-rays did not have a report with them, and his inspection of the films did not reveal any major visible abnormalities. Somewhat peculiarly, a few paragraphs later he refers to a report of the x-ray of the lumbosacral spine of 29 January 2007 (the very x-ray concerning which he stated there was no report) and to the fact that there was disc space narrowing at L5/S1 and “a lot” of retrolisthesis at L5 on S1. This is all somewhat confusing, and it is to be remembered that Mr Henderson not only viewed the plain x-rays and described them as “very abnormal indeed” but even included a copy of them with his report, highlighting the abnormalities observed. Essentially Dr Wallin observed none. In any event, Dr Wallin shared the widespread view that an MRI scan should be performed.
40 Dr Wallin’s conclusion was that the plaintiff was vulnerable in relation to his lumbosacral disc and realistically it was unlikely that he would ever be able to engage in his pre-injury duties. He placed restrictions upon the plaintiff’s capacity along the usual lines. The plaintiff’s keenness to return to a long- term full-time job on restricted duties was described. Dr Wallin implicated employment, although appearing to be confused as to the two separate incidents. The history of injury obtained by him seems to blend both the sending of the sheep down the rails and the subsequent fall when the plaintiff jumped from one stand to another some two years later. All in all, there are some aspects of Dr Wallin’s report that are perplexing.
41 The plaintiff has been seen on some three occasions by Dr Michael Bowles, occupational physician, these examinations being at the request of the defendant. The first of these was on 19 August 2008. The plaintiff told Mr Bowles that at such time, he was looking for work. He referred to low-grade, right sided lumbar discomfort which was “not too bad presently”, and that he had got used to the discomfort. He also knew his limits, and had some stabbing sensations. There was no complaint of any radiating leg pain. At that time, the plaintiff was attending physiotherapy and massage once or twice per week for the last couple of weeks, and also attending hydrotherapy. He told Dr Bowles that he was not taking any medication. Dr Bowles noted no signs of restriction or impairment to informal examination, but that there were reduced lumbar movements in all directions. Dr Bowles diagnosed non- specific mechanical back pain which he described as being of a mild nature, expressing the view that the plaintiff was fit for alternative duties.
42 Dr Bowles again examined the plaintiff on 14 May 2009. He took a history of ongoing trouble and discomfort in the lower right side of the plaintiff’s back. The plaintiff stated that a lot of the time the pain was bearable and that walking around or moving presented no problem. Being seated for long periods, or repeated bending or lifting, would aggravate the complaint, which did not involve radiating leg pain. He was not taking any medication and had not had any recent treatment in the way of physiotherapy or the like. At this time, the plaintiff was working in the asbestos job (exactly how long this work lasted is difficult to ascertain). On examination he showed no sign of restriction or impairment but noted discomfort on forward flexion and left lateral flexion. Straight leg raising was restricted to 60 degrees in both legs. Overall, Dr Bowles felt that the complaints were very similar to those on the previous review. He felt that employment was still a contributing factor and that the plaintiff was not fit for his pre-injury duties. However, he was currently demonstrating a fitness for full-time modified duties.
43 Dr Bowles saw the plaintiff for the third time on 22 March 2010. On this occasion the plaintiff told Dr Bowles that the last occasion on which he had suffered an exacerbation requiring him to go to hospital was approximately two years previously. Dr Bowles recorded that the plaintiff was having no current treatment, could do his own Pilates exercises, and was not using medication. According to the plaintiff his back was “up and down”, but it did not give him “a hell of a lot of trouble”. He had learnt to manage it better. He further stated that his back was always sore but not to the point where he needed medication and generally there was a low-grade ache which he rated 2-3/10, although some days it may reach 6/10. Discomfort occurred in relation to lifting and bending, or sitting or standing for more than an hour, after which the plaintiff needed to change posture. On examination he showed no sign of restriction or impairment, although his range of movement was moderately restricted in all directions. Straight leg raising was to 70 degrees, and there were no neurological abnormalities. Dr Bowles again diagnosed non-specific mechanical backache with no evidence of neurological impairment. On this occasion Dr Bowles expressed the view that any “strain- sprain injury” would have long resolved, and stated that it was likely that the plaintiff’s current back complaints were constitutional. He felt that employment was no longer a significant contributing factor to the current back complaint.
44 This latter view is a concept with which I struggle. Little changed between Dr Bowles’ examination of 14 May 2009 and that of 22 March 2010. In his report of 15 May 2009, Dr Bowles specifically stated that the plaintiff’s condition was still materially contributed to by his employment. By 22 March 2010 employment was no longer a significant contributing factor and any strain type injury would have long since resolved. Given that there would appear to have been no other change of substance, how can one say that symptoms being experienced four to six years after employment related events are contributed to by those events, but, effectively with nothing else happening, five to seven years after the events they no longer make a significant or material contribution? How can one identify the day upon which employment ceased to contribute and constitutional factors took over? Particularly in the circumstances of this case and the dates of Dr Bowles’ examinations, it is an approach which I reject.
45 The defendant also organised for the plaintiff to be seen on two occasions by Mr Paul Kierce, orthopaedic medico-legal consultant. The first such examination was on 10 November 2008. Having taken what was essentially a consistent history of events from the plaintiff, Mr Kierce noted that the plaintiff suffered mainly with pain in the right lower back region, with rarely some referral into the buttock and the back of the upper right thigh. The pain was described as being intermittent, and being aggravated by sitting, standing and cold weather. Mr Kierce also noted that, “occasionally”, the pain made it difficult for the plaintiff to sleep. At that time the plaintiff was still attending a physiotherapist who supervised hydrotherapy once a week. The plaintiff was not taking any medication, including analgesics. Activities of daily living were basically not interfered with, although the plaintiff sometimes had difficulty in relation to removing his shoes and socks. The plaintiff had restricted movement of the lumbar spine, although his straight leg raising was bilaterally negative and there were no neurological abnormalities. Mr Kierce reviewed the plain x-rays but does not appear to have had the CT scan report available to him at this time. He diagnosed aggravation of pre-existing degenerative changes in the lumbosacral joint in the course of employment. However, he was of the view that the work component had now resolved although the condition had not. I would repeat my observations concerning Dr Bowles’ opinion in this regard, although it must be said that Mr Kierce has expressed the view of disappearance of the work component as at the time of his initial examination. Nevertheless, I have difficulties with the concept in a case such as this. If a person is symptom-free prior to the occurrence of a particular incident and thereafter has symptoms, there seem to me to be considerable problems in ascertaining whether the effect of the incident has disappeared and if so when. In any event, Mr Kierce expressed the view that the plaintiff was not fit for pre-injury duties but was fit for alternative work with, again, what could be described as many of the usual restrictions.
46 Mr Kierce saw the plaintiff again on 20 July 2009. By this time the plaintiff had ceased the asbestos work, claiming that the lifting involved made the job unsuitable for him (as opposed to ladder climbing). Mr Kierce expressed the view that the plaintiff would have suffered an exacerbation of his pre-existing spondylosis, such aggravation having by now settled and the symptoms and signs being consistent with constitutional lumbar spondylosis. Mr Kierce also took a history that, following worsening of the plaintiff’s low back pain whilst doing the asbestos work, he attended upon his general practitioner and upon a physiotherapist for one treatment. The plaintiff stated that otherwise he was staying much the same with a degree of backache always present. He referred to the difficulty of getting comfortable in bed, and said that this was better if he had a few drinks before retiring. He referred to some pain in the back of the right thigh. The plaintiff was taking no medication whatsoever. Upon examination the plaintiff had marked tenderness over the lumbosacral joint posteriorly and there was definite guarding in the right lumbar muscles. Flexion was limited as was extension. Straight leg raising was a positive 30 degrees on the right. Mr Kierce repeated his opinion that the work contribution had ceased, and repeated his view that the plaintiff was fit for alternative duties with restrictions, but not for his pre-injury duties.
47 Professor Vernon Marshall also examined the plaintiff on behalf of the defendant. This examination took place on 20 January 2009. Professor Marshall had available to him, amongst other material, both the plain x-rays and the CT scan, and viewed each of these, commenting that they were consistent with the reports available. He took from the plaintiff a consistent history, and recorded that the plaintiff still had pain in the low back with exacerbations on lifting strains. The plaintiff complained of pain when standing or sitting for prolonged periods, the back pain occasionally going to the right buttock, but was managing in his current job spotting asbestos. The plaintiff also stated that he managed the activities of daily living, although referring to some difficulty with trousers and shoe laces. He was on no current medication, and referred again to some physiotherapy, hydrotherapy and Pilates. Having examined the plaintiff, Professor Marshall diagnosed a work strain low back injury with persisting mechanical low back pain but no radiculopathy. In his view the radiology showed evidence of disc injury without neural compression at L5/S1. He made a whole person impairment assessment pursuant to the AMA Guides of 5 per cent, considering the impairment to be stable.
48 In relation to the medication taken by the plaintiff, this would not appear to be great. Various histories mentioned above include references to the fact that the plaintiff was not on medication. The plaintiff believed that originally he was provided with a prescription in respect of Panadeine Forte, together with some repeats. However, in more recent times it would appear that, if he required a Panadeine Forte tablet, he simply obtained one from one of the patrons or the management at the Caledonian Hotel where he lives. He also made some reference to taking Nurofen. His consumption of Panadeine Forte tablets, accepting that he does from time to time obtain these in the bar at the Caledonian Hotel, has been quite limited. He made references to taking one or two a month, and ultimately agreed that he had only taken two since March of this year.
49 It would be safe to say that the amount of prescription medication consumed by the plaintiff is minimal, and he was somewhat vague in relation to Nurofen. He has also referred to the fact that “a few beers” help him sleep. He is no longer having hydrotherapy essentially because the hours which he is working do not permit it.
50 I have set out the history of treatment, interposing this with some references to the plaintiff’s employment, at considerable length. Issues concerning diagnosis, treatment and the use of medication loomed large in this case. As shall be discussed, basically it was asserted that the plaintiff has had no referral to any specialist for treatment, limited treatment from his general practitioner and has used very little medication. These were said to be important factors in assessing whether the plaintiff satisfied the statutory test. Some emphasis was also placed by Mr Scanlon upon the plaintiff’s ability to work for the hours (and money) which he is currently doing. Reference was also made to other post-injury employment. Accordingly, a comparatively close examination of medical records and opinions against the background of the plaintiff’s employment seems to me to be required.
51 I turn now to my finding as to the nature of the injury suffered by the plaintiff.
52 Expressing a view in this regard is made more difficult by the fact that the plaintiff has not undergone an MRI despite the fact that this has been suggested by Mr Henderson, Mr Brownbill and Dr Wallin. Mr Henderson has commented that such an investigation should be done because further clarification of the diagnosis would be helpful. Mr Brownbill has mentioned the fact that an MRI would be a more sensitive investigation in relation to intervertebral discs. As it is, medical assessors have had to base their diagnoses upon the plain x-rays and the CT scan, and it is to be remembered that the CT scan was reported as showing only one very, very minor disc bulge of doubtful significance.
53 On balance, I am of the view that the plaintiff has suffered some damage to the lumbosacral intervertebral disc as opined by Mr Brownbill in his report of 8 April 2010. Mr Henderson has also referred to an L5/S1 intervertebral disc derangement together with the retrolisthesis. Professor Marshall, examining on behalf of the defendant, has described the injury as a low back strain disc injury at L5/S1 and without neural compression. This last observation seems to me to be accurate and consistent with both the CT scan and the description of the plaintiff’s symptoms.
54 I am of the view that the plaintiff suffered this injury in the relevant incident in May 2003, and that this continues to be the cause of his symptoms, restrictions and consequences. It is the view of Mr Brownbill that, on probability, the incident of May 2003 resulted in damage to the disc in question, and that there were subsequent aggravations. Mr Henderson expressed the view in March 2008 that the plaintiff’s employment with the defendant was and remained a significant contributing factor in relation to his chronic low back strain injury and condition. In January 2009 Professor Marshall stated that the plaintiff had persisting low back pain following the work injuries described. Dr Smith has referred to the fact that the plaintiff has continuing back problems which he did not have until he worked with the defendant. I would also point out that the plaintiff made a claim for compensation pursuant to s.98C of the Act in relation to the back injury sustained on 9 May 2003. The defendant, via its insurer, accepted the claim although the assessment of Professor Marshall meant that the plaintiff had failed to reach the necessary threshold in order to obtain any monetary award. Nevertheless, liability was accepted and this in turn seems to have entailed the acceptance of the propositions of injury and permanence. Accordingly, the observations of Ashley JA in Ansett Australia Ltd & Anor v Taylor [2006] VSCA 171 are of relevance. In summary, I accept that the plaintiff suffered a low back injury in the incident under consideration, and that there have been exacerbations and improvements thereafter. I am satisfied that the symptoms, restrictions and consequences from which he now suffers result from the injury sustained in May 2003.
55 As has been stated, I reject the views of Dr Bowles and Mr Kierce to the effect that what the plaintiff suffered was a temporary aggravation of a pre-existing injury – namely, in the opinion of Mr Kierce, spondylosis or, in the view of Dr Bowles, some form of strain superimposed on a constitutional condition. I have already expressed my reasons in this regard. Insofar as the injury was in the nature of an aggravation of pre-existing degeneration, I accept that the plaintiff was symptom-free prior to the occurrence of injury. I accept that he has suffered symptoms, restrictions and consequences as a result of the injury and that these continue. Accordingly, when assessing the aggravated condition as required by the authorities, I have come to the conclusion that, if the injury is in the nature of an aggravation, it has resulted in the consequences of which the plaintiff now complains.
56 I am also of the view that the injury and its consequences are permanent within the meaning of the Act. Dr Smith has expressed the view that the plaintiff will have continuing back problems. Mr Henderson has stated that the plaintiff’s incapacity for heavy physical manual labouring work is likely to be permanent and that he will never be able to return to such work in the foreseeable future. Mr Brownbill has expressed the view that the plaintiff’s condition has stabilised. Professor Marshall has arrived at a similar conclusion, and was prepared to make a whole person impairment assessment, permanency being an essential ingredient of that.
57 It was not suggested that the plaintiff is suffering from symptoms or consequences which are psychological or psychiatric in nature. That was certainly not the impression conveyed in the witness box and I note that Dr Bowles has stated on more than one occasion that there was no evidence of any non-organic features, abnormal pain behaviours or inconsistencies. Any psychiatric or psychological factors must be ignored, but I consider them effectively non-existent in the present case.
(iv) The plaintiff’s employment, training and other developments since the injury 58 As leave is sought solely in respect of pain and suffering damages, and as I have already discussed at some length the plaintiff’s employment-related activities since the occurrence of the injury, not a great deal of further comment in this regard is required. However, the plaintiff did state that his present job as a tradesman’s assistant at the installation of the Mortlake Power Station will almost certainly come to an end within the next few weeks as that project approaches completion. In answer to a question of mine, the plaintiff referred to another similar job coming up with the same employer, namely Bilfinger Berger, in Karratha, Western Australia. He said that, if he was put off his present job, he would put his name forward in relation to the job in Western Australia. If asked, he would go, but he doubted whether he would be so asked because, unless the supervisor recommended someone, usually the trades assistants are picked up locally. However, the plaintiff made it clear that, if asked to go or recommended, he would accept that employment.
Ruling 59
It is with some regret and sympathy for the plaintiff that I say that in my opinion he has failed to discharge the burden of proof and meet the statutory requirements in relation to pain and suffering. I mention regret and sympathy because I found him to be a pleasant and candid person, even if not the best of historians. I have also found that, probably, he suffered a discal injury to the lumbar spine. However, the nature of this legislation is such that there are going to be pleasant and genuine workers who suffer an injury in the course of employment but will be unable to pursue common law proceedings against an employer, even if they believe such employer has been negligent. This will be because such persons are unable to satisfy the quite demanding statutory tests. Without commenting on the negligence issue, in my view, the plaintiff falls into that category. That is so despite the fact that he has behaved in accordance with the objects of the Act and found for himself suitable light work.
60
I have reached the conclusion that the burden of proof has not been discharged for the following reasons, which are not listed in order of importance.
(i)
Particularly in recent times, the plaintiff has not had a great deal of treatment in respect of his injury. The plaintiff has never been referred to a specialist for treatment. Since October 2009 the plaintiff has only seen his general practitioner twice and the second visit did not seem to be particularly directed towards the plaintiff’s back. If that be so, the plaintiff has not seen his doctor primarily by reason of his back or complaining principally about back pain since January. During much of that time he has been working, admittedly in a suitable and light job, but working and travelling long hours. If one then looked again at the clinical records for the year 2009, the plaintiff reported back pain but also described his condition as stable on 15 January 2009. He again reported back pain on 12 February but on 12 March his back was described as stable. On 12 May there is noted “back some minor probs”. On 9 July 2009 he had seen a physiotherapist for an exacerbation of back pain. On 6 August his back had deteriorated, and had been taped by the physiotherapist. On 20 August 2009 his spine was better. ON 16 September 2009 he attended for the purposes of a WorkCover certificate and then for the renewal of that on 21 October 2009. On that latter date is was recorded that he was keen to go back to work, and that his back was generally okay and only certain movements such as reaching up and down may aggravate it. The entry of 16 November 2009 simply records back pain and nothing further.
Thus, whilst the plaintiff attended at Warrnambool Medical Clinic on a number of occasions during 2009, on several of these there are references to the back being stable, to minor problems, to the spine being better and to the back being generally okay. According to the plaintiff’s evidence, he has not received any physiotherapy for approximately one year and only saw a physiotherapist on an irregular basis before that. He has had no hydrotherapy since last November. He does some Pilates exercises at home. Overall, and it is no criticism of the plaintiff but simply the fact of the matter, his regime of treatment, including the absence of any referral to a specialist, has not been particularly suggestive of someone suffering from a major back problem or major symptoms. That is particularly so in recent times.
(ii) The level of medication taken by the plaintiff could be described as low if not minimal. As with the level of treatment, this is not a conclusive factor, but is a potential barometer as to the level of pain and disability. The clinical records do not reveal any prescription for painkilling medication, although the plaintiff believed, and I accept, that initially a prescription for Panadeine Forte with some repeats was given to him. As previously stated, at several medico-legal examinations over the last few years a history was noted of the plaintiff taking no medication. I accept that he sometimes obtains Panadeine Forte tablets from acquaintances at the bar at the Caledonian Hotel, but even so this would appear to be in the range of 1-2 tablets a month and only two since last March. The plaintiff made a passing reference to Nurofen, but how often this is taken is not clear. His affidavit of 2 July 2010 refers to the plaintiff carrying a supply of “over the counter” medication with him at all times, but his rate of consumption is far from certain.
(iii) The state of the pathology in the plaintiff’s lumbar spine is also far from clear. It is a pity that he has not undergone an MRI as suggested. It is apparent that both Mr Henderson and Mr Brownbill would have been assisted in arriving at conclusions had that been done. As it is, we have a plain x-ray indicating evidence of muscle spasm, and degenerative changes with posterior slipping of L5 in relation to S1. Then we have a CT scan of the lumbosacral spine indicating a very, very minor central disc bulge at L5/S1 that does not distort the adjacent thecal sac or displace the adjacent S1 nerve root, a finding which is described as being of doubtful significance. As pointed out by Mr Henderson, the report in relation to the CT scan makes no mention at all of the retrolisthesis, which adds to the confusion. Mr Kierce does not seem to have had access to the CT scan or the radiologist’s report, whilst Dr Bowles records that he viewed the films which were consistent with the reports. Overall, the situation is confused and it is a pity that an MRI was not carried out.
(iv) On balance, the plaintiff does not seem to suffer referred pain or radiculopathy. For example, on both 6 and 20 August 2009 Dr Smith noted that there was no referral of pain. There is no mention of any such referral when he attended the Warrnambool Medical Clinic on 21 October 2009 and 16 November 2009. The same could be said of the attendances on 7 January 2010 and 6 April 2010. Indeed, as far back as 10 December 2008, Dr Smith was recording that there was no referral. The plaintiff told Mr Henderson that he had never had any leg pain, but only back pain. However, he also referred to some leg pain after the incident in 2005 which did not last for a particularly long period. Mr Brownbill also recorded no leg pain, pins and needles, or weakness or numbness. Testing of reflexes and for sensation revealed no abnormality. To Dr Bowles there was no complaint of any radiating leg pain, although Mr Kierce noted that referral into the buttock and the back of the upper thigh occurred rarely. To Professor Marshall the plaintiff mentioned pain occasionally going to the right buttock. All in all, I accept that the plaintiff has had very little referred pain and there is no indication of radiculopathy. Again, these are not conclusive factors, but are also some indication as to the severity of any damage suffered and of consequences.
(v) The plaintiff’s own description of the symptoms which he suffers does not assist in conveying a picture of a back injury the consequences of which are more than significant or marked and are at least very considerable. As I have said, the plaintiff is frank and also may be somewhat stoical. Nevertheless, some weight must be attached to his own description of his symptoms. The remarks such as that to Dr Bowles on 22 March last that his back did not give him “a hell of a lot of trouble”, and earlier remarks to that doctor that his lumbar discomfort was “not too bad presently” are scarcely calculated to assist in meeting the statutory requirements for pain and suffering damages. To Professor Marshall he stated that he managed the activities of daily living, whilst referring to some difficulty with trousers and shoe laces. The notes of the Warrnambool Medical Clinic, particularly in mid-2009, contain references to minor problems, the spine being better after an exacerbation and the back being generally okay with only certain movements such as reaching up and down possibly aggravating it. Comments such as this simply do not paint a picture of a serious injury. That is so even after making an allowance for stoicism or for the tendency of the plaintiff to perhaps underplay his hand.
(vi) Another matter that is to be taken into account is that the impact of the injury and its consequences upon the plaintiff’s life does not seem to be great. As stated, there has been little interference with daily activities, essentially there being references only to such things as problems with shoe laces and trousers, heavier housework at a time when the plaintiff was not living at his present address, and some discomfort with longer car trips. The plaintiff’s pastimes prior to injury seem to have been watching football along with watching races on the television and having a bet, and he still does these things. He is a single man, and thus we have heard nothing of some of the complaints so frequently referred to in other cases. There is nothing before the court concerning such matters as an inability to kick the football with his children or otherwise engage in sports with them. There is no current complaint concerning an inability to perform household tasks and repairs, or to work in the garden.
In short, and as Mr Brookes readily submitted, the plaintiff leads a simple life as a single man boarding in a hotel. I appreciate the argument that, such being the case, he may have less resources to fall back upon and an injury which impacts upon one or two of the comparatively few interests he has in life has the potential to have a disproportionately larger effect than might have been anticipated. However, I am not satisfied that that is the position which prevails in the present case. Before suffering the injury, the plaintiff was enjoying a comparatively simple life as a single man having drinks with acquaintances, watching football and having a few bets on the races. That is almost exactly what he continues to do. Whilst there is reference in the plaintiff’s affidavits to his previously enjoying tennis and squash, it would appear that this basically ceased in 2000 when the plaintiff commenced work with the defendant. Between then and suffering the injury, he might only have played once or twice. It is difficult to say that there has been any substantial interference with the plaintiff’s pre-injury sports, hobbies or past-times.
(vii) True it is that the plaintiff is limited in relation to the type of employment in which he can engage in the future. Mr Brookes made forceful submissions in this regard. As I have stated during those submissions, it seems to me that the inability to engage in employment as a factor in relation to pain and suffering can have two principal areas of relevance. Firstly, an inability to engage in particular employment can cast an indirect light upon the restrictions and consequences from which an injured person might suffer – see the decision of the Court of Appeal in
Stijepic v One Force Group Aust Pty Ltd & Victorian WorkCover
Authority [2009] VSCA 181 at paragraph 35. Secondly, it may be that the enjoyment and satisfaction of being able to engage in work with which one is familiar is removed. In the present case, there is no evidence of any substance that the plaintiff gained particular enjoyment from the type of work that he did. The indirect light which might be cast upon his restrictions would indicate that they are typical of those imposed upon someone with a “light work back”, which, to a degree, takes one back to a consideration of interference with lifestyle and daily activities. This has already been discussed. It is also to be remembered that for some months the plaintiff has demonstrated a capacity to work in particularly well-paid suitable employment, and, even if he is not overly optimistic, will be hoping to continue in that employment in Western Australia.
(viii) When all the evidence is considered, the level of pain complained of by the plaintiff is not markedly severe. There is interference with his sleep, although he has stated that “a few beers” assists his sleep. He takes no sleeping tablets. Given the long hours that he is working and travelling, it is not surprising that he is tired at the end of the day. I appreciate that, as discussed by Maxwell P in Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69, sleep deprivation can be a matter of great significance. However, and as argued by Mr Scanlon, in McKinnon the plaintiff’s pain, as referred to by Maxwell P, dominated his life and was “all-pervasive”. That could not be said to be the situation in the present case. Whilst the plaintiff does have interrupted sleep (for which he takes no medication and concerning which there has been little complaint to doctors – he told Mr Kierce that, “Occasionally it makes it difficult for him to get to sleep”), on balance this factor does not seem to me to be sufficient to permit the plaintiff to discharge the burden of proof.
61 In summary, when one looks at the consequences to the plaintiff, and bearing in mind the apparent lack of magnitude of these whilst also considering not only what has been lost but what has been retained, the burden of proof has not been discharged. The pain and suffering consequences could not be said to be more than significant or marked and as being at least very considerable.
Conclusion
62 The plaintiff has failed to discharge the burden of proof. His application for leave in respect of pain and suffering damages is dismissed. I shall hear the parties as to any ancillary orders that are required.
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