Brar v Victorian WorkCover Authority
[2021] VCC 241
•16 March 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-19-02790
| HARPREET SINGH BRAR | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE MORRISH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13, 16 and 20 July 2020 (via Zoom) | |
DATE OF JUDGMENT: | 16 March 2021 | |
CASE MAY BE CITED AS: | Brar v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 241 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to the lumbar spine – causation – whether progressive injury caused over the period of employment – whether multiple injuries – – question of pre-existing degenerative condition or congenital condition – whether disentanglement of consequences required– plaintiff’s credibility in issue due to inaccurate taxation returns – pain and suffering and pecuniary loss damages
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s327
Cases Cited:Lu v Mediterranean Shoes Pty Ltd (2000) 1 VR 511; Humphries and Anor v Poljak (1992] 2 VR 129; Barlow v Hollis [2000] VSCA 26; Richards v Wylie (2000) 1 VR 79; Hunter v Transport Accident Commission [2005] VSCA 1; Dwyer v Calco Pty Ltd (No 2) [2008] VSCA 260; Haden Engineering Pty Ltd vMcKinnon (2010) 31 VR 1; Petkovski v Galletti [1994] 1 VR 436; De Agostino v Leatch & Anor [2011] VSCA 249; Georgopoulos v Silaforts Painting Pty Ltd (2012) 37 VR 232; Dean v Crossway Holdings Pty Ltd [2011] VSCA 198; Transport Accident Commission v Zepic [2013] VSCA 232; Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; O’Neill v TD Williamson Aust Pty Ltd [2008] VSC 398; Poholke v Goldacres Trading Pty Ltd [2016] VSCA 232; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; Swannell & Anor v Farmer [1999] 1 VR 299; Cropp v Transport Accident Commission & Beglehole [1998] 3 VR 357; Harris v DJD Earthmoving Pty Ltd [2016] VSCA 188; ACN 005 565 926 Pty Ltd v Snibson [2012] VSCA 31; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Aburrow v Network Personnel Pty Ltd & WorkSafe Victoria [2013] VSCA 46; Sutton v Laminex Group Pty Ltd (2011) 31 VR 100; Tatiara Meat Co Pty Ltd v Kelso [2010] VSCA 12; Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170; Acir v Frosster Pty Ltd [2009] VSC 454; AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz (2012) 34 VR 309; Ronchi v Alcoa Portland Aluminium Pty Ltd [2007] VSC 340; RJ Gilbertsons Pty Ltd v Skorsis (2000) 12 VR 386
Judgment: Leave granted to bring common law proceedings to recover both pain and suffering damages and pecuniary loss damages for personal injury sustained throughout the course of the plaintiff’s employment with the employer.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J B Richards QC with Ms K M Manning | Maurice Blackburn Pty Ltd |
| For the Defendant | Mr J L Batten | IDP Lawyers Pty Ltd |
Table of Contents
The issues
Summary of findings
The hearing
Legal principles
The Plaintiff’s evidence
Pain and suffering consequences
Economic loss consequences
Cross-examination
The Plaintiff’s credibility
(1) In his first affidavit the Plaintiff deposed that he commenced working for Postar a year after he had in fact commenced working there
(2) The Plaintiff has not been candid about his work capacity following surgery or about the nature of that work
(3) The Plaintiff has been less than frank in his taxation returns and has not provided important financial records
Findings as to the Plaintiff’s credibility
The Plaintiff’s treating healthcare professionals
Dr Asim Saghir, general practitioner, Hallam Medical Group
Dr Saghir’s first report, 8 March 2017
Dr Saghir’s second report, 20 August 2018
Dr Saghir’s third report, 27 April 2020
Mr Chris Xenos, neurosurgeon
The Plaintiff’s medico-legal witness
Mr Paul D'Urso, consultant neurosurgeon
Mr D’Urso’s first report, 11 September 2017
Mr D’Urso’s second report, 14 May 2018
Dr James Rowe, specialist occupational physician
Mr Ales Aliashkevich, neurosurgeon
Mr Jonathan Hooper, orthopaedic surgeon
Mr Michael Troy, general surgeon
The Defendant’s evidence
Worker’s Claim Form
Associate Professor Peter Steadman, consultant orthopaedic surgeon
Mr Michael Long, general surgeon
Mr Long’s first report, 28 September 2015
Mr Long’s second report, 6 October 2015
Mr Long’s third report, 19 February 2017
Mr Ronald Haig, orthopaedic surgeon
Ms Jayde Daly, physiotherapist
The Plaintiff’s credibility
Did the Plaintiff suffer more than one injury?
The Defendant’s submissions
The Plaintiff’s submissions
Conclusion – a progressive condition deteriorating over the course of employment
Is the injury a “serious injury” in terms of pain and suffering?
Is the injury a “serious injury” in terms of loss of earning capacity?
“Without-injury” earning capacity
“After injury” earning capacity
Conclusion – loss of earning capacity proved
Final conclusions and orders
HER HONOUR:
1 By Originating Motion dated 18 June 2019, the plaintiff, Harpreet Brar, seeks leave in accordance with s327 of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”)[1] to bring common law proceedings for the recovery of both pain and suffering damages and economic loss damages for personal injuries arising throughout the course of his employment with Exceed Earthmovers Pty Ltd (“the employer”) and on or about 1 September 2014.
[1]The period of employment commenced in January 2013. By virtue of s5(1)(b) of the Act, the proceedings are governed by the Act and not by the Accident Compensation Act 1985
2 The plaintiff claims permanent serious impairment or loss of function of the lumbar spine, including an L5-S1 central posterior disc bulge, right lower limb radiculopathy with sensory disturbance, and chronic pain and restriction of movement.
The issues
3 There is no doubt that the plaintiff has suffered an injury to his lumbar spine. It was so bad that he required surgery, and he might need further surgery in the future. But that is not the issue. In summary, the real issues according to the defendant are:
(a)Whether the plaintiff has suffered more than one injury;
(b)Whether the plaintiff’s work with the employer was the cause of the claimed injury and its consequences;
(c)If there are two (or more) injuries, whether the plaintiff has identified sufficiently the consequences flowing from each of the (work) injuries;
(d)Whether the plaintiff has demonstrated that he has suffered a permanent loss of earning capacity as defined by the Act; and
(e)Whether the pain and suffering consequences of any work-related injury satisfy the definition of “serious injury” as set out in the Act.
4 The defendant submits that the plaintiff is not a truthful witness and that the Court should approach his evidence with caution.
Summary of findings
5 The plaintiff bears the onus of proof on the balance of probabilities. As shall later be explained, I accept the defendant’s submission that the plaintiff’s evidence must be approached with caution. Later, I shall identify the parts of his evidence that I accept and the parts that I reject.
6 Having carefully scrutinised the plaintiff’s evidence and having taken account of the totality of the evidence, for the reasons that follow, I find:
(a)The plaintiff suffered an injury to his lumbar spine, most probably against a backdrop of a degenerative condition in his lumbar spine;
(b)The plaintiff’s work with the employer was a significant cause of his injury;
(c)The plaintiff’s injury was progressive in nature and arose during the course of his employment with the employer, including during an incident that occurred on 1 September 2014;
(d)Even if the incident on 1 September 2014 was a discrete injury, it was productive of consequences capable of being identified;
(e)The plaintiff has established that as a result of the injury, he has suffered a permanent loss of earning capacity of 40 per cent or more; and
(f)The plaintiff has established that when judged by a comparison with other cases in the range of possible impairments or losses of a body function, the pain and suffering consequences can fairly be described as “more than significant” and “at least very considerable”, thus satisfying the definition of “serious injury” as set out in the Act.
The hearing
7 The hearing commenced on 13 July 2020 and continued on 16 and 20 July 2020. Mr Richards QC appeared with Ms Manning on behalf of the plaintiff. Mr Batten appeared on behalf of the defendant.
Legal principles
8 In order to succeed in this application, the plaintiff must satisfy the Court on the balance of probabilities that he has suffered a “serious injury” as defined in the Act.[2] “Serious injury” is relevantly defined in the Act as follows:
“‘serious injury’ means—
(a) permanent serious impairment or loss of a body function; ... .”[3]
[2]The plaintiff must pass through the “serious injury gateway” in accordance with sections 326, 327 and 328 of the Act
[3]Section 325(1) of the Act
9 Section 325(2) of the Act provides:
“For the purposes of the assessment of serious injury in accordance with section 335(2) and (5)—
(a) …
(b)the terms serious and severe are to be satisfied by reference to the consequences to the worker of any impairment or loss of a body function, … as the case may be, with respect to—
(i) pain and suffering; or
(ii) loss of earning capacity—
when judged by comparison with other cases in the range of possible impairments or losses of a body function, … respectively;
(c)an impairment or loss of a body function … is not to be held to be serious for the purposes of section 335(2) unless—
(i) the pain and suffering consequence; or
(ii) the loss of earning capacity consequence—
is, when judged by comparison with other cases, in the range of possible impairments or losses of a body function, … as the case may be, fairly described as being more than significant or marked, and as being at least very considerable;
…
(e)if a worker relies upon paragraph (a) … of the definition of serious injury in subsection (1) … a court must not grant leave under section 335(2)(d), on the basis that the worker has established the loss of earning capacity required by paragraph (b) unless the worker establishes in addition to the requirements of paragraph (c) or (d), as the case may be, that—
(i) … at the date of the hearing of an application under section 335(2)(d), the worker has a loss of earning capacity of 40 per cent or more, measured … as set out in paragraph (f); and
(ii) the worker … will, after the date … of the hearing, continue permanently to have a loss of earning capacity which will be productive of financial loss of 40 per cent or more;
(f)for the purposes of paragraph (e)(i), a worker’s loss of earning capacity is to be measured by comparing—
(i) the worker’s gross income from personal exertion (expressed at an annual rate) which the worker is—
(A) earning, whether in suitable employment or not; or
(B)capable of earning in suitable employment—
as at that date, whichever is the greater, and—
(ii) the gross income (expressed at an annual rate) that the worker was earning or was capable of earning from personal exertion or would have earned or would have been capable of earning from personal exertion during that part of the period within 3 years before and 3 years after the injury as most fairly reflects the worker’s earning capacity had the injury not occurred;
(g)a worker does not establish the loss of earning capacity required by paragraph (b) if the worker, taking into account the worker’s capacity for suitable employment after the injury and, where applicable, the reasonableness of the worker’s attempts to participate in rehabilitation or retraining—
(i) has; or
(ii) after rehabilitation or retraining, would have—
a capacity for any employment including alternative employment or further or additional employment which, if exercised, would result in the worker earning more than 60 per cent of gross income from personal exertion as determined in accordance with paragraph (f) had the injury not occurred;
(h)the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purposes of paragraph (c) of the definition of serious injury and not otherwise;
(i)the physical consequences of a mental or behavioural disturbance or disorder are to be taken into account only for the purposes of paragraph (c) of the definition of serious injury and not otherwise;
(j)the assessment of serious injury must be made at the time that the application is heard by the court.”
10 To be a “serious injury”, the injury must be one that has serious consequences for the plaintiff judged on an objective basis and, when judged by comparison with other cases in the range of possible impairments, it must be capable of being fairly described at least as “very considerable” and certainly more than “significant” or “marked”.[4]
[4]Lu v Mediterranean Shoes Pty Ltd (2000) 1 VR 511 (“Lu”) at paragraph (15]; Humphries and Anor v Poljak (1992] 2 VR 129 at 140-1
11 The term “serious” requires the impairment and its consequences to be viewed objectively and also judged on an external comparative basis against possible impairments, not necessarily in the same category.[5]
[5]Humphries and Anor v Poljak (supra) at 170; Barlow v Hollis [2000] VSCA 26 at paragraph [29]
12 For a body function, the evaluative task concerns the impairment or loss, not the injury that causes the loss or impairment.[6]
[6]Humphries and Anor v Poljak (supra) at 134; Richards v Wylie (2000) 1 VR 79 at paragraph [16]
13 The degree of seriousness of the impairment is to be judged by its “consequences” to the plaintiff and by “comparison with other cases” in the range of possible impairments or losses.[7]
[7]Humphries and Anor v Poljak (supra) at 140; Lu v Mediterranean Shoes Pty Ltd (supra) at paragraph [15]
14 Assessment of consequences requires a comparison of the plaintiff’s before and after position,[8] and taking account of what the plaintiff has lost, as well as what he has retained.[9]
[8]Humphries and Anor v Poljak (supra) at 136; Hunter v Transport Accident Commission [2005] VSCA 1 at paragraph [34]
[9]Dwyer v Calco Pty Ltd (No 2) [2008] VSCA 260 at paragraph [27]; Haden Engineering Pty Ltd vMcKinnon (2010) 31 VR 1 at paragraph [14]
15 It is most likely that the plaintiff had an underlying, degenerative condition in his lumbar spine prior to commencing work with the employer. Aggravation of a pre-existing condition may qualify as a serious injury provided that the extent of the aggravation of itself meets the requisite threshold. A comparison must be made of the plaintiff’s condition immediately before the relevant compensable injury with his condition thereafter, and an assessment made of the extent of the additional impairment. If that additional impairment is not “serious”, then leave must be refused.[10]
[10]Petkovski v Galletti [1994] 1 VR 436 at 443; De Agostino v Leatch & Anor [2011] VSCA 249 at paragraphs [9]-[11]
16 The defendant submits that the plaintiff is attempting to aggregate impermissibly a number of discrete injuries and count them as one serious injury. Ordinarily, it is not permissible to “aggregate” different injuries, none of which are “serious”.[11]
[11]Humphries and Anor v Poljak (supra) at 138 and 146; Lu (supra) at paragraphs [28]-[29]; Georgopoulos v Silaforts Painting Pty Ltd (2012) 37 VR 232 at paragraphs [58]‑[61]
17 The defendant submits that aggregation of injuries is not possible because the plaintiff has failed to establish that the injuries arise from one incident, although it may be that they combine to affect the same body function. As was stated in Humphries and Anor v Poljak:[12]
“6 It is impermissible in an attempt to ascertain if a ‘serious long term impairment’ has been shown to exist to look to a number of ‘impairments’ not any one of which is a ‘serious long term impairment’ and treat them as acting in total, as it were, so as to meet the requirement of the definition. A body function must be identified. That done the inquiry to be made is whether that function has been impaired or lost. It may, of course, be impaired or lost by reason of two or more injuries acting together to cause such impairment or loss.”
[12](Supra) at 138 per Crockett and Southwell JJ
18 In Lu,[13] the worker had suffered injury to both his right elbow and forearm as a consequence of ongoing work. Later, he suffered a discrete injury to his right shoulder when a heavy object fell from a conveyor belt and struck him on the top of his shoulder near the neck. During the hearing of the application for leave, an attempt was made on Lu’s behalf to count both the elbow and shoulder injuries as an impairment of the function of the right arm. The appellate Court held that injuries can only be properly aggregated if they are the result of one event or incident:[14]
“If injuries are the result of separate events, each giving rise to a cause of action for damages, each injury is to be considered separately for the purposes of determining whether any resulting impairment or loss of a body function enables each injury to meet the definition.”[15]
[13]Supra
[14]Lu (ibid) at paragraph [4] per Buchanan JA. See also Dean v Crossway Holdings Pty Ltd [2011] VSCA 198 at paragraph [72]
[15]Lu (ibid) at paragraph [5] per Buchanan JA. See also Transport Accident Commission v Zepic [2013] VSCA 232 in which it was confirmed that the spine represents a single body function, although in line with previous authority, the elbow and shoulder involve separate body functions, as do the foot and knee
19 Chernov JA, with whom Winneke P and Buchanan JA agreed, held that the worker’s injuries:
“... impaired two separate body functions, namely, the plaintiff’s right shoulder area and his right elbow respectively. Consequently, they cannot be relevantly aggregated. The mere fact that those injuries had, in one sense, an effect on the movement of his right arm does not mean that the arm was the relevant body function. A body function that is indirectly, albeit detrimentally, affected by two separate injuries to two body functions, is ordinarily not thereby relevantly impaired by those injuries for the purpose [of a serious injury application].”[16]
[16]Lu (ibid) at paragraph [23]
20 Turning to the analysis required in order to determine whether aggregation of injuries is permissible, his Honour observed:
“No relevant difficulty arises where leave is sought in respect of one workplace injury which is said to have arisen out of one incident, causing impairment to the one body function. In those circumstances, the applicant must demonstrate that that injury is a ‘serious’ one. But where leave is sought in respect of two or more workplace injuries, whether the applicant must establish that each is a ‘serious injury’ or whether they can be looked at together to see if, in combination, they satisfy the requirement of the definition will depend on whether they all affect the one body function and on whether they arise out of the same relevant incident.
…
It is not permissible in a multi-injury case to look at a number of impairments resulting from the injuries, not any one of which is a serious and long term impairment, and see if, together, they constitute an impairment which is serious and long term. Thus, if several workplace injuries have caused impairments to several body functions, those impairments cannot be relevantly aggregated. But where the injuries impair the one body function and have arisen out of the one incident they may be relevantly aggregated for the purpose of determining if the impairment of that body function is serious and long term. ...
Thus, the scheme of the legislation prohibits the relevant aggregation of two consecutive workplace injuries (neither of which is a ‘serious injury’) that have arisen from discrete incidents notwithstanding that they impair the one body function.”[17]
[17]At paragraphs [26]-[28]
21 Here, the plaintiff submits that there is no aggregation, rather, the injury is the result of the nature of the plaintiff’s work during which he sustained ongoing trauma to his lumbar spine, culminating in the final episode of trauma on or about 1 September 2014, all affecting the one body function. In other words, the present case is distinguishable from Lu, where there were multiple injuries caused to different body functions. Here, the injury is a progressive one affecting the same body function.
22 Where an injury occurs by way of gradual process over a period of time beginning on or after 20 October 1999 and continuing after 1 July 2014 and that injury arises out of or in the course of employment, or due to the nature of employment, the worker may rely on any part of the injury that occurred before 1 July 2014 for the purposes of establishing that the injury constitutes a “serious injury”.[18]
[18]Section 5(2) of the Act; See also the obiter dicta in Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at [89]; O’Neill v TD Williamson Aust Pty Ltd [2008] VSC 398 at paragraph [107]
23 Even where there are multiple injuries causing an overlap of consequences, that does not reduce the significance of the consequences of any of them.[19] It may be that a number of compensable injuries have consequences that satisfy the prerequisite elements to find they are each serious injuries in their own right. “It is quite possible – it will be a matter for determination according to the evidence in the particular case – that each of two or more compensable injuries is a legally sufficient cause of the same consequences.”[20]
[19]Poholke v Goldacres Trading Pty Ltd & Victorian WorkCover Authority [2016] VSCA 232 at paragraph [110]
[20]See Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602 at paragraph [57]
24 Ordinarily, the time for assessing whether an injury is “serious” is the date at which leave is decided.[21]
[21]Swannell & Anor v Farmer [1999] 1 VR 299 at paragraph [36]
25 Any impairment or loss of body function must be permanent,[22] that is, “likely to persist into the foreseeable future”[23] or “at least extending beyond a few years”[24] with no significant improvement over time.[25]
[22]Section 325(1) of the Act
[23]Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at paragraphs [18]-[19]
[24]Cropp v Transport Accident Commission & Beglehole [1998] 3 VR 357 at 361 and 367
[25]For further discussion about the element of permanency, see Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, cited with apparent approval on the element of permanence in Harris v DJD Earthmoving Pty Ltd [2016] VSCA 188 at paragraph [34]
26 A stoic applicant who has been prepared to put up with pain and suffering and make the best of his or her situation should not be treated less favourably than an applicant who, being of less strength of character, simply resigns himself or herself to the injury.[26]
[26]ACN 005 565 926 Pty Ltd v Snibson [2012] VSCA 31 at paragraph [70]; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260 (17 December 2008) at paragraph [3]
27 The endurance of permanent daily pain requiring frequent medication must, according to ordinary human experience, raise a real prospect of a “very considerable” consequence.[27]
[27]ACN 005 565 926 Pty Ltd v Snibson (supra) at paragraph [71]; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592 (28 November 2007) at paragraph [199]
28 In any event, because the plaintiff asserts that there are pain and suffering consequences, careful examination of the evidence is required in order to determine first, the extent of the pain and, second, its consequences for the plaintiff.
29 As to the pain and suffering consequences of an injury, in Aburrow v Network Personnel Pty Ltd & WorkSafe Victoria,[28] Maxwell P and Tate JA observed:
[28][2013] VSCA 46
“[10] As Maxwell P suggested in Haden Engineering Pty Ltd v McKinnon,[29] it is of assistance in reviewing a body of evidence like this – for the purpose of evaluating the ‘pain and suffering consequence’ of an injury – to distinguish between:
[29]Supra
• the plaintiff’s experience of pain as such; and
• the disabling effect of the pain on the plaintiff’s physical capabilities (including capacity for work) and enjoyment of life.[30]
[30]Haden Engineering Pty Ltd v McKinnon (supra) at paragraph [9]
These are not, of course, rigidly separated categories. For example, evidence about the disabling effect of the pain may enable inferences to be drawn about the intensity and frequency of the pain, and vice versa.[31] But the distinction remains important for the purposes of the pain and suffering assessment, as this appeal shows.
[31]See for example Tatiara Meat Co Pty Ltd v Kelso [2010] VSCA 12 at paragraphs [46]-[47]
The experience of pain as such
[11]We deal first with [the] experience of pain as such. The approach suggested in Haden, and subsequently endorsed in Sutton v Laminex Group Pty Ltd,[32] was as follows:
[32](2012) 31 VR 100
The experience of pain
As to the experience of pain as such, the court must assess the intensity of the pain which the plaintiff experiences. For this purpose, pain intensity is often classified on the scale ‘mild/moderate/severe’. Unless the pain is constant, the court will need also to assess the frequency and duration of the pain episodes.
The evidentiary basis of the pain assessment will ordinarily comprise the following:
(a) what the plaintiff says about the pain (both in court and to doctors);
(b) what the plaintiff does about the pain (eg medication, rest, seeking medical treatment);
(c) what the doctors say about the extent and intensity of the plaintiff’s pain; and
(d) what the objective evidence shows about the disabling effect of the pain.
As to (a), the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility. The court will make its own assessment of the plaintiff’s credibility if he/she gives evidence, and will also take into account views expressed by examining doctors about the reliability of the plaintiff’s accounts of pain.
…
As to (d), the cases recognise that some plaintiffs may be more ‘stoical’ than others. This means that such a plaintiff is, to an unusual degree, prepared to endure pain in order to maintain a desired level of function. The injury suffered by the ‘stoical’ plaintiff is not to be viewed as any the less serious merely because he/she manages to remain more active than might have been expected given the level of pain. In such a case, the ‘objective’ evidence of the disabling effect may be of less significance than usual.[33]
…
[33]Haden Engineering Pty Ltd v McKinnon (supra) at 109-10, paragraphs [46]-[48]
The disabling effect of the pain
[19] As to the disabling effect of the pain, it is necessary to identify the extent to which the pain limits the plaintiff’s physical functioning, and interferes with the plaintiff’s enjoyment of life. As this Court (Ashley JA) said in Dwyer v Calco [Timbers] Pty Ltd (No 2):[34]
[34][2008] VSCA 260
‘[l]mpairment is concerned with what has been lost. But the significance of what has been lost ... may be informed, to an extent, by what is retained.’[35]
[35]Dwyer v Calco Timbers Pty Ltd (No 2) (supra) at paragraph [27]. See also Haden Engineering Pty Ltd v McKinnon (supra) at 4-5, paragraphs [9]-[14]
[20] As suggested in Haden (and endorsed in Sutton),[36] the disabling effect of the pain is to be assessed by considering the impact of the pain on the worker’s capacity for work and the degree to which it interferes with the ordinary activities of life, as follows:
[36]Sutton v Laminex Group Pty Ltd (supra) at 110-111, paragraphs [49]-[50]
‘As to capacity for work, it is necessary to identify whether and to what extent the plaintiff is prevented by the pain from performing the duties of his/her previous employment. The fact that the plaintiff has been able to return to full-time employment does not preclude an affirmative finding of serious injury. It is simply one of the matters to be taken into account. What matters in this regard is the extent to which ‘an area of work which [the plaintiff] enjoyed ha[s] been closed off to [him or her].’
Capacity for work aside, assessing the extent to which the pain interferes with the ordinary activities of life will typically involve consideration of its effect on the plaintiff’s:
• sleep;
• mobility;
• cognitive functioning (whether directly because of the pain or indirectly because of the effects of pain-relieving medication);
• capacity for self-care and self-management;
• performance of household and family duties;
• recreational activities;
• social activities;
• sexual life; and
• enjoyment of life.
Whether and to what extent the matters listed are relevant to the court’s task in a particular case will, naturally, depend on the circumstances of the case.”[37]
[37]Haden Engineering Pty Ltd v McKinnon (supra) at 5-6, paragraphs [15]-[16]
30 The defendant has quite properly conceded that if the plaintiff succeeds in relation to his application for leave to bring common law proceedings to recover economic loss damages, he should also be granted leave to bring proceedings to recover pain and suffering damages.[38]
[38]Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170 at paragraph [63]. See also Acir v Frosster Pty Ltd [2009] VSC 454 at paragraph [147]
The Plaintiff’s evidence
31 The plaintiff was born in India in 1984. He was educated to the equivalent of Year 12.
32 In 2007, the plaintiff married and immigrated to Australia.
33 Between 2007 and 2010, the plaintiff earned his living driving a taxi in Melbourne.
34 In 2010, the plaintiff commenced work as a truck driver.
35 On 21 January 2013, the plaintiff commenced employment as a concrete truck driver with the employer. The employer was subcontracted by another concrete company to deliver concrete.
36 The plaintiff regularly drove concrete truck number 23. It was an lVECO diesel truck owned by the employer. The plaintiff was required to collect the truck from his employer’s depot in Dandenong South at the beginning of his shift and return it there at the end of his shift.
37 The plaintiff’s duties included driving the truck, operating the concrete chutes and cleaning the truck at the end of the day. The plaintiff described the work as strenuous, repetitive and fast paced.[39] The plaintiff usually worked six days a week. His work hours depended on the employer’s workload. In any event, he stayed at his work each day until the job was completed.
[39]Plaintiff’s first affidavit paragraph 10, exhibit C, sworn 18 January 2018
38 In approximately June 2013, the plaintiff began to experience pain and stiffness in his lower back. The pain was aggravated by work and was worse after days involving heavy lifting and driving on uneven road surfaces.
39 On 28 July 2013, the plaintiff attended his general practitioner, Dr Yu, at the Dandenong Superclinic. According to the plaintiff, he explained to his doctor that he was experiencing back pain, which he attributed to the heavy work he was doing.
40 On 11 August 2013, the plaintiff re-attended Dr Yu as his lower back pain had not resolved. Dr Yu referred the plaintiff for an x-ray of his lumbar spine, which was conducted on 16 August 2013. The clinical notes of the Dandenong Superclinic confirm the plaintiff’s attendance on that day, that he stated he was a truck driver suffering from lower back pain not helped by Voltaren or Panadeine Forte, that the pain was shooting to his right lower leg, and that possibly there was a diagnosis of sciatica. The notes also record the plaintiff as having pain in the coccyx area, although no injury was noted. The notes also state “patient insist[s] that he couldn[’]t sleep at night due to the pain”.[40] The plaintiff is recorded as doing physical work. Mild limping was noted and the doctor noticed restriction on flexion and extension of the lower back. Dr Yu prescribed Panadeine Forte and Voltaren.[41] The notes also confirm that the plaintiff was referred for a lumbar x-ray.
[40]Exhibit 13, p2
[41]Exhibit 13
41 The x-ray report of 16 August 2013 states:
“Clinical Details:
Truck driver, lower back pain, not help by Voltaren and Panadeine forte, pain shooting to the right lower leg.
Findings:
The alignment is satisfactory. There is mild disc space narrowing seen at several levels with early osteophyte formation. No crush fracture is seen. SI joints are unremarkable.”[42]
[42]Exhibit 13, p3, Exhibit S
42 The plaintiff returned to see Dr Yu on 24 August 2013 to discuss his lower back pain.[43]
[43]Confirmed by the notes in exhibit 13, p2
43 In November 2013, the plaintiff told his employer about his lower back pain. The employer provided the plaintiff with an acupressure type machine, explaining that it may help to relieve the plaintiff’s pain. The plaintiff used the machine, but it did not reduce his lower back pain.
44 In December 2013, the plaintiff’s lower back pain worsened. The pain began to radiate into his right buttock and down his right leg to his right knee. The plaintiff then attended Dr Naheed Muzaffar at the Hallam Medical Group. The clinical notes of Dr Muzaffar record:
“History:
right sided buttock pain since october. truck driver. had xray done last october-told has some disc narrowing. also overweight.
pain in right buttock radiates down leg, but not below knee.
advised for back exercise, weight loss. trial of mobic for 7 days only. sample pack sup[p]lied. no [history of] kidney/heart/stomach problem
…
Reason for contact: Back pain – Buttock.”[44]
(sic)
[44]Exhibit 8, p17
45 On 22 January 2014, the plaintiff re-attended the Hallam Medical Group. He was seen by Dr Asim Saghir. Dr Saghir ceased the plaintiff’s use of Mobic and instead prescribed Celebrex.[45]
[45]Confirmed by exhibit 8, p16
46 On 26 March 2014, the plaintiff again saw Dr Saghir, complaining of back pain. Dr Saghir ceased the plaintiff’s use of Celebrex and instead prescribed Panadeine Forte (500-milligram/30-milligram, two tablets at night) and Mobic (15-milligram, one tablet daily).[46]
[46]Confirmed by exhibit 8, p16
47 According to the plaintiff, he continued to work and manage his lower back pain over the next “couple of months”.[47]
[47]Exhibit C, paragraph 17
48 The plaintiff deposed:
“… On 15 August 2014, I attended Dr Saghir for treatment. I advised him that my lower back pain was worse and was radiating into my right leg. I told Dr Saghir that this pain became worse when I was doing activities like carrying my daughter from the car. Dr Saghir prescribed me with Panadeine Forte.”[48]
[48]Exhibit C, paragraph 17
49 Dr Saghir’s clinical note of that consultation states:
“Friday August 15, 2014 15:24:33
Dr. Asim Saghir
Rt leg pain
recurrent pains
no burning
was carr[y]ing his daughter from the car when it started.
Reason for contact:
Sciatica
Actions:
Prescriptions printed:
PANADEINE FORTE TABLET 500mg/30mg 2 tab nocte.”[49]
[49]Exhibit 8, p16
50 I note here that the defendant submits that there is an inconsistency between the plaintiff’s representation in his affidavit and the doctor’s record. On the one hand, the plaintiff asserts that he was experiencing ongoing pain between the time of his previous consultation and this one, and that he used the example of carrying his daughter from the car to demonstrate how his pain was affecting his normal activities of life. On the other hand, according to the defendant, the doctor’s note should be construed as a record of the plaintiff’s representation that his pain “started” when he was carrying his daughter from the car. Similarly, a note in the plaintiff’s chiropractic records also refers to the symptoms coming on when “picking daughter out from car”.[50] The defendant submits that if the doctor’s and chiropractor’s records reflect accurately what the plaintiff represented, this constitutes a serious blow to the plaintiff’s credibility. I shall return to this later.
[50]Exhibit 9, Dr Djalikian’s initial patient record for the plaintiff
51 On approximately 18 August 2014, the plaintiff’s lower back pain was so bad that he could not attend work. He was having difficulty walking because of the pain. He contacted his boss and arranged for a friend to fill in for him.[51] The plaintiff attended Dr Saghir. He took four days off work. Dr Saghir’s clinical notes of that consultation record that the plaintiff’s reason for attending was sciatica. Dr Saghir referred the plaintiff to Narre Warren Physiotherapy and ordered a care plan review for 18 February 2015. Celebrex was prescribed and Mobic was ceased.[52]
[51]This is confirmed by the remittance advices, Exhibit HB2 and Exhibit E, Plaintiff’s Court Book (“PCB”) 44
[52]Exhibit 8, p15-16
52 I should observe here that the plaintiff’s remittance advices[53] show that in fact he worked a full day for the employer on 16 August 2014, the day after he attended Dr Saghir, when reference was made to carrying his daughter from the car.
[53]Exhibit HB2 to Exhibit E, PCB 44
53 On 22 August 2014, the plaintiff again attended Dr Saghir because of his ongoing lower back symptoms.[54]
[54]Confirmed by Dr Saghir’s clinical notes, exhibit 8, p15. Dr Saghir prescribed Panadeine Forte and Celebrex for the plaintiff.
54 On 27 August 2014, the plaintiff attended Dr Saghir. The plaintiff had been receiving physiotherapy treatment from Mr Henry Tram. Dr Saghir’s clinical notes refer to Mr Tram’s report:
“6 month hist lbp [scil 6 months’ history of lower back pain]
truck driver - still working
R) leg symptoms with lower back
Not feeling better after tape to support
Brace limited relief
2 months holiday planned in december - travel ? able to fly comfortably
Rx:
gentle mobilisation of spine
letter to dr asim to request scan
options - if severe, cortisone, surgeon referral
if for conservative manage - take time off work, continue NSAIDs and use 3 physio sessions for core stability exercises and return to work planning
Plan:
Dr ASIM [Saghir] to request next physio r/v after scan results come back.”[55]
(sic)
[55]Exhibit 8, p14-15
55 Dr Saghir’s clinical records of the consultation with the plaintiff note:
“lower back pain, radiating Rt leg
ongoing for the last 2 weeks
having physio
advised for off work for a few weeks--pt declined.
no improvement in the back pains.”[56]
[56]Exhibit 8, p14
56 I interpret Dr Saghir’s note to mean that contrary to medical advice, the plaintiff declined to take time off work.
57 Dr Saghir referred the plaintiff for a CT scan of the lumbar spine.[57]
[57]Exhibit 8, p14
58 The CT scan was conducted on 27 August 2014. The findings were reported as follows:
“Posterior osteophytes at L3/4 and L5/S1.
Endplates are preserved.
No spondylolisthesis.
Central posterior disc bulge at L5/S1 indents the thecal sac.
Disc bulge extends to both exit foraminae which are narrowed more or so on the left.
No bony abnormality.
SI joints are normal.
There is no paravertebral mass.
… .”[58]
[58]Exhibit R
59 The plaintiff described a particular incident that occurred at work on approximately 1 September 2014. The plaintiff deposed:
“20.On about 1 September 2014, I was at work completing my normal duties. I was making a delivery of concrete to a site at the Cranbourne Shopping Centre. In order to deliver the concrete, I had to use a chute which attached to the back of the truck. As I was removing the concrete chute, it became stuck and I had to pull on it with force to release it. As I did so, I felt severe pain in my lower back and into my right leg.
21.I finished the delivery and returned to the Pronto Concrete depot. I told the dispatcher at the depot, Peter, what had happened and that I was unable to continue to work due to the pain in my lower back.
22.I was assisted by another driver, Bubby, to wash down my truck. I then left the depot. I have not worked for the … [employer] since.”[59]
[59]Exhibit C, paragraphs [20]-[22]
60 It is this incident that the defendant contends constitutes a discrete episode of separate injury.
61 On 4 September 2014, the plaintiff attended Dr Saghir, who prescribed Endone for the plaintiff and referred him to Mr Chris Xenos, neurosurgeon. I shall refer to Mr Xenos’ report in detail a little later as the defendant submits that it contains prior representations made by the plaintiff that are inconsistent with his evidence.
62 I interpose here that on 5 September 2014, the plaintiff attended Dr Jessica Djalikian for chiropractic treatment. The notes record that the plaintiff had experienced symptoms relating to his lumbar spine seven or eight months beforehand. He presented on 5 September 2014 to Dr Djalikian complaining of lower back and leg pain. In response to the question “How long have you had this for?” the notes record “3 weeks picking daughter out from car”.[60]
[60]Exhibit 9
63 On 6 October 2014, the plaintiff again attended Dr Saghir due to his lower back pain. Dr Saghir referred the plaintiff for an MRI scan of his lumbar spine, which was conducted on 18 December 2014. Dr Saghir also referred the plaintiff for physiotherapy treatment. The plaintiff initially attended Narre Warren Physiotherapy on 1 June 2015.
64 Due to his ongoing lower back symptoms, the plaintiff attended Mr Chris Xenos on 25 August 2015. Mr Xenos recommended that the plaintiff undergo surgery. The plaintiff was apprehensive about having spinal surgery at such a young age, but was desperate to find a way to relieve his lower back pain. Mr Xenos requested that WorkCover fund the surgery; however, the application was rejected. Accordingly, the plaintiff was forced onto the public system waiting list.
65 On 27 April 2016, the plaintiff had a further CT scan of his lumbar spine.
66 On 16 December 2016, Mr Xenos performed surgery on the plaintiff’s back, consisting of a right L5-S1 discectomy and S1 rhizolysis.
Pain and suffering consequences
67 In his first affidavit, sworn on 18 January 2019,[61] the plaintiff described his pain and suffering consequences as follows:
[61]Exhibit C. I note that the cover sheet states that the date of the document is 18 January 2018, but the jurat clause states 18 January 2019. It is likely that the cover sheet is incorrect, given the document was sworn early in the new year.
“27.I continue to experience constant pain of varying degree in my lower back. I would describe this pain as a throbbing, dull pain. I also experience a sharp, shooting pain in my lower back on a regular basis. My lower back pain fluctuates from day to day and is exacerbated with activity. My lower back pain is also worse in winter time, when the weather is wet and cold.
28.I experience an increase in my pain levels, if I stand or sit continuously for more than approximately 45 minutes. I have to try and alleviate my pain by changing positions and stretching. This affects the duration I can drive for. On a good day, I can drive for approximately 45 mins before I will need to take a break.
29.I find that I now have difficulty with walking for long distances. After approximately 30 minutes of walking, my pain will be aggravated and I will need to take a break and rest my lower back and legs. I find it painful to walk up hills, as it places additional pressure on my lower back. I also have difficulty climbing and descending stairs, as these movements aggravate my lower back pain. I have to negotiate stairs and steps slowly and carefully.
30.Prior to suffering my lower back injury, I rarely had trouble sleeping. I now experience disturbed sleep due to the pain and discomfort in my lower back. I try to sleep on my side and place a pillow behind me and between my legs. I am regularly woken by pain in my lower back. This leaves me feeling drowsy, irritable and unable to concentrate the next day.
31.I now have difficulty with leaning, bending and flexibility. These movements aggravate my lower back pain. Prior to sustaining my lower back injury, I helped my wife around the house as much as possible with the cleaning, gardening and cooking. I am now limited in the domestic chores that I can do. I still try to cook, but I need to take breaks and rest my lower back. I still try and assist my wife with the grocery shopping, but I need to be careful when lifting heavier items, as it places strain on my lower back and aggravates my lower back pain.
32.This lack of flexibility and difficulty bending also means that at times I have difficulty dressing. I try to dress sitting down, so as to avoid having to lean forward to put my trousers and shoes and socks on. I find these alterations in my life very frustrating.
33.… I have two beautiful children. As a father, I want to be involved in their lives and care for them. I want them to look up to and be proud of, their father. Due to the pain and incapacity that I experience in my lower back, I now struggle to play and engage with my children. I cannot give them the care that an active father could and should be able to provide. This saddens me greatly, as it affects my relationship with my children.
34.I previously played volleyball with my friends. We played social games on the weekend. I enjoyed this activity and spending time with my friends. I now avoid taking part in these games as running and stretching for the ball places strain on my lower back and aggravates my pain. Also, some of the games are played on sand at the beach. Walking on sand is difficult for me due to my lower back injury. The uneven surface aggravates my pain. I now spend most of my time watching on from the sidelines.
35.I am of the Sikh faith and attend temple once or twice a month. During prayer, we are required to stand, sit and kneel for sustained periods of time. Due to my lower back injury, I find this difficult. My lower back pain becomes aggravated and I cannot concentrate on my prayer.
36.I try to avoid taking too much medication if possible, as it upsets my stomach and leaves me feeling drowsy. I also do not want to become reliant on it. I currently take Panadol Osteo each day, as required. I take Tramadol and Endone on days when my lower back pain is aggravated. On average this is approximately twice per week.
37.I continue to see Dr Asim Saghir on a monthly basis. I also complete home exercises that I learned at physiotherapy. I complete these exercises on the days that I am not working.
38.Since sustaining my lower back injury, I have struggled mentally and emotionally with my incapacity. I find that I am very stressed about what the future holds in terms of my health. I consider that my lower back condition is gradually deteriorating and that leaves me feeling helpless and depressed. I find that I now get easily frustrated. I often loss (sic) my temper with my children. I was previously a very balanced and reserved person.
39.Prior to my injury at work, I was a bubbly and happy person. I was independent, self-sufficient and proud. I was previously a strong, capable person who was able to provide for his family. I am frustrated and angry at how incapacitated I have become due to my injury. I constantly worry about my health in years to come and how I will support my family. My life has taken a turn that I cannot control and I am struggling to cope.”[62]
[62]Exhibit C, paragraphs [27]-[39]
68 In his second affidavit, sworn 25 June 2020,[63] the plaintiff maintained that he continued to suffer the same pain and suffering consequences as previously outlined. In addition, he deposed that due to his ongoing pain and restriction, his relationship with his wife and children had deteriorated:
[63]Exhibit D. The contents of exhibits C and D were adopted and confirmed by the plaintiff in his third affidavit, dated 10 July 2020, exhibit E.
“9. My relationship with my wife and children has deteriorated since I suffered my lower back injury and continues to do so. As a result of my lower back pain, I continue to struggle to engage with my children, who are now 10 years and 4 years. I am cautious about carrying and holding them as these movements often aggravate my lower back pain. I struggle to play with them. I constantly have to remind them not to pull on my hand when we are walking. I feel like I am now just standing on the sidelines watching them and not being able to be a proper part of their lives.
10. As a result of my lower back injury, I have also become irritable and grumpy. After a day at work I am often too exhausted and in too much pain to interact or play with my children. I find that I often become annoyed and shout at my children for no reason. I don’t like being this type of a father.
11. My relationship with my wife has also suffered due to my lower back injury. Most of my time is now consumed with managing my pain and ensuring that I am able to go to work. I am not there for her and I cannot support her like I had previously done. The balance in our relationship has shifted and I seem to rely on her constantly to support me. I am not the same man that she married.
12. My sleep continues to be disturbed by my lower back pain. I often lie on the floor of my bedroom, in an effort to relieve my pain and get some rest.”[64]
[64]Exhibit D, paragraphs [9]-[12]
69 In that affidavit, the plaintiff also deposed that he was working, although not to the level and capacity that he did prior to the injury. He deposed that he works despite his pain, and that he worries about losing the ability to work and provide for his family. This worry causes him much anxiety.
70 The defendant did not challenge the plaintiff’s evidence about his pain and suffering consequences.
Economic loss consequences
71 In his first affidavit,[65] the plaintiff described his economic loss consequences as follows:
“40.Due to the consequences of my lower back injury, I had to take time off work for a prolonged period. In about July of 2015, I commenced working as a taxi driver on Saturday and Sunday each week. I continued this work up until I had my surgery in December 2016. In about mid 2017, I commenced working for Postar Transport Pty Ltd, as a concrete truck driver. I initially worked 2 days per week and I gradually increased this to 3 days per week. I have recently started working 4 days per week.”[66]
[65]Exhibit C
[66]Exhibit C, paragraph [40]
72 At this stage, I should mention that in his second affidavit,[67] the plaintiff corrected the date upon which he commenced working for Postar Transport Pty Ltd (“Postar”). He deposed that he commenced working for Postar in approximately July 2016 (not mid-2017), working two days per week.[68] The defendant submits that the plaintiff lied about the date upon which he commenced working for Postar, and that this is a factor I should take into account when assessing his credibility. I shall return to this later. I return to the plaintiff’s first affidavit:
“41.I work Monday, Tuesday, Thursday and Friday. I believe this is the maximum that I can work. I earn $200 per day. After working Monday and Tuesday, I need Wednesday off work to rest and recover in preparation for two more days of work. My work aggravates my pain and I require medication to get through the working day. Usually the maximum time that I drive for continuously, is 30 to 40 minutes. At the moment, this is manageable, as I can get out of the truck to have a break and stretch my lower back. I am exhausted by the end of the day. I need to work to provide for my young family.
42.I believe that had I not suffered the injury to my lower back, I would have continued to working and earn a similar, if not higher wage, to that which I was earning prior to September 2014. I now have grave concerns about my occupational future. I believe that I could not work more than I am currently. I am unsure whether I will be able to maintain this level and type of work into the future. I have suffered a significant reduction in my earning capacity.”[69]
[67]Exhibit D
[68]Exhibit D, paragraph [4]
[69]Exhibit C, paragraphs [41]-[42]
73 In his second affidavit,[70] the plaintiff acknowledged that in his previous affidavit he had incorrectly stated that he commenced working for Postar in mid-2017 when in fact he had commenced working for them in approximately July 2016. Initially he worked two days per week, which he continued until he underwent surgery in December 2016. He then recommenced working for Postar in approximately March 2017, working two days per week. He gradually increased this to three days per week. In approximately August 2017, the plaintiff supplemented his income by driving for Uber, however, he ceased this work after approximately one month as he had difficulty with the sitting involved. He continued to work with Postar, increasing to four days per week, however, he reduced the number of days’ work to three days per week on the advice of Dr Saghir. As at the date of swearing his second affidavit,[71] the plaintiff deposed that he was working on Mondays, Wednesdays and Fridays, and that when he was not working, he needed to rest in order to be fit to go to work the following day.[72] The plaintiff deposed:
“15.I push myself to work, as I want to support my family. I feel like my lower back pain is gradually deteriorating though and I worry that soon I will only be fit to complete two days of work per week. I am very worried about my future and how I will provide for my family.”[73]
[70]Exhibit D
[71]25 June 2020
[72]Exhibit D, paragraph [13]
[73]Exhibit D, paragraph [15]
74 In his third affidavit,[74] the plaintiff deposed that in the financial year ending 30 June 2014, he earned a total of $52,020 gross, derived from working for the employer.[75]
[74]Exhibit E, sworn 10 July 2020
[75]Exhibit E, paragraph [5]
75 The plaintiff further deposed that in the financial year ending 30 June 2020, he earned a total of $29,958 gross working for Postar. He reckoned that this equated to about $576.11 gross per week.[76]
[76]Exhibit E paragraph 10
Cross-examination
76 When cross-examined by Mr Batten on behalf of the defendant, the following themes were pressed:
(a)The plaintiff suffered more than one injury – the first, an aggravation or exacerbation-type injury, possibly sustained in the course of employment (with consequences of no great moment); the second, a discrete injury sustained on approximately 15 August 2014 when the plaintiff lifted and carried his daughter from the car; and the third, a discrete injury sustained at work on approximately 1 September 2014 when the plaintiff pulled on a chute that was stuck in order to release it;
(b)It was not the work with the employer that was responsible for the pain and suffering or economic loss consequences alleged by the plaintiff;
(c)The plaintiff had understated his true earning capacity; and
(d)The plaintiff should not be accepted as a credible witness.
The Plaintiff’s credibility
77 I now turn to the points raised by the defendant to undermine the plaintiff’s credibility.
(1)In his first affidavit the Plaintiff deposed that he commenced working for Postar a year after he had in fact commenced working there
78 There would be more force in the submission that the plaintiff attempted to portray that he was incapable of resuming alternative employment for a year following surgery if the plaintiff had not disclosed to both Mr Long and Mr Haig (the defendant’s experts) that he had commenced truck driving in July 2016. These disclosures were made well before the plaintiff swore his second affidavit in which he corrected his earlier error.
79 In the circumstances, I do not consider that this error in the first affidavit undermines the plaintiff’s credibility.
(2)The Plaintiff has not been candid about his work capacity following surgery or about the nature of that work
80 The plaintiff has experience both driving taxis and driving for Uber. Between the years of 2007 and 2011 approximately, he drove taxis after immigrating to Australia. As mentioned earlier, the plaintiff deposed that after leaving his work for the employer, he resumed taxi driving two days per week for a period of approximately eighteen months.[77] The cross-examination raised these questions: for how long did the plaintiff drive taxis after his injury; for how many hours per day and per week; how much income did he derive from driving taxis, and is he still capable of participating in that form of work?
[77]Exhibit D, paragraph 40
81 The defendant submits that the plaintiff has downplayed his capacity to derive income from taxi driving or driving for Uber, and that he has failed to disclose the fact that he has derived income from these sources in his taxation returns. I shall examine the question of the accuracy of the plaintiff’s taxation returns a little later.
82 When cross-examined, the plaintiff confirmed that he holds a current taxi licence that permits him to drive anywhere, but added that he does not own a taxi. In the past he has driven a Yellow Cab (formerly Dandenong Taxis) in Dandenong for someone he could or would only identify as “Sammy”.[78] Although not asked to produce his bank statements or records of income relating to taxi or Uber driving, I note that the plaintiff has produced no documents to the Court to confirm the amount of income he derived from taxi or Uber driving. That said, the plaintiff stated that he had kept complete records of taxi driving and that he had provided them to the insurer.
[78]Transcript (“T”) 28
83 Mr Batten put to the plaintiff that, as stated in the history reported by Narre Warren Physiotherapy, he had commenced driving taxis in July 2015.[79] Mr Batten asserted the record showed that the plaintiff was driving first one day a week, then two days a week, and thereafter “three days a week by early April 2018,”[80] after he had stopped work for the employer. I note that Mr Batten was in error as to the year, as the report has the year as 2017 not 2018.[81] In response, the plaintiff testified that he only drove taxis two days a week, on Saturdays and Sundays during the day. He preferred those days as these were quieter times and he could rest if he needed to.
[79]Exhibit 10
[80]T 30
[81]Exhibit 10, DCB 59
84 With respect to how long the plaintiff had undertaken this work, the plaintiff estimated that he had driven taxis for approximately one year, which would bring him to the approximate time that he commenced working for Postar. On being pressed by Mr Batten, the plaintiff repeated that he did not drive a taxi in 2018. In 2018, he was driving a truck.
85 The plaintiff confirmed he had started driving taxis in 2015, and estimated his average wage from driving a taxi on a Saturday or Sunday to be between $100 and $150, with the money split equally with Sammy (confirming this meant an estimated $300 from passengers). The plaintiff insisted that he had not driven a taxi since 2016, and stated he had left taxi driving at the time he had started with Postar. The plaintiff’s testimony is at odds with what he deposed in his first affidavit: “In about July of 2015, I commenced working as a taxi driver on Saturday and Sunday each week. I continued this work up until my surgery in December 2016.”[82] As the plaintiff commenced work with Postar in July 2016, on his affidavit this would mean that between July and December 2016 the plaintiff was working for Postar and was also driving taxis two days a week. The assertion must also be seen in light of the plaintiff’s admission that for a period of time while working for Postar, in approximately August 2017, he also drove one day a week for Uber, agreeing that for this period he was working four days a week:
[82]Exhibit C, paragraph 40
MR BATTEN:
Q:“And at some stage or other in about August 2017 you’re driving Uber one day a week?---
A: Yes.
Q:So, there's a period of time when you're in fact driving either a truck or a car five days a week?---
A:No, four. That time when I drive Uber then I – I was driving three days with Postar and one day with Uber.”[83]
[83]T59-60
86 I am not confident that the year 2017 is correct, given the line of questioning started asserting the date of commencing with Postar as July 2016[84] and then shifted to August 2017. Even so, the point to note is that while Uber driving is not necessarily taxi driving, it is a similar form of work. Most significantly, the admission establishes that the plaintiff was capable of doing two forms of driving work, four days per week. This admission is also consistent with histories recorded in various medical reports.
[84]T59
87 I now turn to the evidence about the plaintiff’s taxi driving as gleaned from the medical reports:
88 On 25 July 2015, Mr Troy reported:
“… he has been driving a taxi on Saturdays for three weeks which is his second job and he has been doing that for 8-10 hour shifts for the last three weeks.”[85]
[emphasis added]
[85]Exhibit X, DCB 18
89 Given that this report is dated 25 July 2015, the plaintiff was not working for Postar, and had not yet undergone his surgery in December 2016, but was stated to be driving a taxi as a “second job”.
90 In September 2015, Mr Long reported that the plaintiff:
“… commenced driving a taxi two months ago, up to 8-10 hours a day.”[86]
[86]Exhibit 3, DCB 24
91 On this evidence, the plaintiff commenced taxi driving in approximately July 2015.
92 In November 2016, Mr Xenos reported the plaintiff:
“… has performed some part time taxi driving as well as part time truck driving. … .”[87]
[87]Exhibit J, PCB 128
93 On 19 February 2017, two months after the plaintiff underwent surgery, Mr Long reported:
“… off work but resumed work as a taxi driver approximately 12 months following 1 September 2014 working two days per week, 8-10 hours per day.
Commenced concrete truck driving two days a week, 8-10 hours per day casual in July 2016 with Postar Transport Pty Ltd. Continued this work until spinal surgery on 16 December 2016 and has been off work since that time.”[88]
[88]Exhibit 5, DCB 51
94 In July 2017, Ms Daly reported:
“As he did not have the capacity to return to his job as a cement truck driver, … [the plaintiff] began work as a taxi driver. He begun (sic) doing one day per week but increased to two days when his weekly payments were terminated in November, 2015. …
…
… He was not working at that stage [6 February, on re-presentation to the physiotherapist] and also experienced some left lumbar pain. … [The plaintiff] returned to work as a taxi driver during late February, 2017, working two days per week and progressed to three days by early April.”[89]
[89]Exhibit 10, PCB 59
95 As at the date of this report, the plaintiff had been working for Postar for a year.
96 In March 2018, Mr Haig reported:
“About one year after his injury [that is in 2015] he resumed work taxi driving doing this until July 2016 when he again began truck driving though for a different company and that work continues.”[90]
[90]Exhibit 6, DCB 56
97 In February 2020, Ms Green reported:
“… he remained off work from September 2014 until mid-2015 at which time he commenced employment as taxi driver two days per week which he did until he ceased for spinal surgery in late 2016. … [The plaintiff] reported in mid-2017 he commenced his current employment with a new employer as a concrete mixer truck driver using an ABN.”[91]
[91]Exhibit M, PCB 163
98 In March 2020, Mr Aliashkevich reported:
“He commenced employment as a taxi driver in around 2015 and drove a taxi one day a week and increased to driving 2 days a week.
…
He was unable to return to work as a taxi driver. …
Around mid-2017, … [the plaintiff] commenced working for Postar Transport as a concrete truck driver despite persisting back pain while taking occasional pain medications, including Targin. … .”[92]
[92]Exhibit O, PCB 187, 189
99 From the medical records and due to the lack of financial records, it is unclear for how many days and hours the plaintiff has worked per week since the incident of 1 September 2014. That makes it difficult to assess what the plaintiff’s earning capacity was and is, either on the basis of hours worked or income earned.
(3)The Plaintiff has been less than frank in his taxation returns and has not provided important financial records
100 The defendant served a Notice to Produce on the plaintiff’s solicitors dated 8 July 2020 requiring the plaintiff to produce:
“1.All invoices rendered by the Plaintiff to Postar Transport Pty Ltd between July 2016 and September 2019
2.All Remittance Advices, banking records or any other documents evidencing the amounts of payments received by the Plaintiff from Postar Transport Pty. Ltd. And the dates of those payments for the period from July 2016 to date.”
101 The plaintiff provided invoices sent to Postar,[93] but otherwise he produced no other records evidencing the amounts of payments that he received from Postar. No bank statements were produced.
[93]Exhibit 11 and Exhibit HB3 attached to Exhibit E – note that the plaintiff maintains that he was not the one who issued the invoices, rather he alleges that Postar created the invoices and emailed them to him (T57-58)
102 A bundle of the plaintiff’s taxation returns was tendered as Exhibit 7.[94]
[94]Also Exhibit HB1 attached to Exhibit E
103 I agree with the defendant that the plaintiff’s taxation returns do not appear to tally with the invoices. Nor do they appear to appropriately reflect the income that the plaintiff derived from taxi driving or driving for Uber.
104 The table below compares the plaintiff’s taxation returns with the invoices he sent to Postar:
Taxation return Gross income declared Invoices Comments 2016 – 2017
“Small business income”[95]
$15,800
$4,620
$7,073
$1,540
$9,240
TOTAL $22,473
Main salary and occupation recorded in the taxation return is “Truck driver – general”[96] on the first page of the return and “Courier pick-up and delivery services”[97] on the second page. The plaintiff had his surgery in this financial year.
2017 – 2018
“Non-primary production income”
$12,647
“Non-primary production other business income”
$14,731[98]
$7,700
$9,680
$7,260
$10,340
TOTAL $34,980
Description of main business activity was recorded as “Courier pick-up and delivery services”.[99]
Was also in receipt of weekly compensation payments.
2018 - 2019
$16,500 + $17,298
supplemental[100] (probably WorkCover weekly payments)[101]
$11,660
$9,383
$7,315
$10,796
TOTAL $39,154
Main salary and wage occupation description was recorded as “courier”.[102]
[95]Exhibit 7, DCB 95
[96]Exhibit 7, DCB 94
[97]Exhibit 7, DCB 95
[98]Cf. Exhibit T, listing the income as $12,647
[99]Exhibit 7, DCB 98
[100]Cf. Exhibit T, listing the income as $30,694
[101]T69
[102]Exhibit 7, DCB 100
105 I should note that the invoices the plaintiff sent to Postar for the financial year 2019 to 2020 show that the plaintiff worked for Postar for 13 days in July, 12 days in August, 15 days in September, 11 days in October, 12 days in November, 10 days in December, 5 days in January (I assume he took holidays that month), 9 days in February, 10 days in March, 12 days in April, 12 days in May and 15 days in June.[103]
[103]Exhibit HB3 attached to Exhibit E
106 Adding to the confusion about the plaintiff’s true financial position is the fact that the plaintiff submitted an amended taxation return for the period 2013 to 2014 (the financial year before the incident of 1 September 2014) following an audit initiated by the Australian Taxation Office.[104] The original return declared a gross income derived from “courier pick-up and delivery services” in the amount of $11,450.[105] The same figure appears for this type of work in the amended return.[106] The principal difference between the two returns appears in the category of supplemental income. In the original return the figure recorded is $11,050. In the amended return the figure recorded is $52,020.
[104]Exhibit 7, DCB 83
[105]Exhibit 7, DCB 86
[106]Exhibit 7, DCB 84
107 When cross-examined about the inconsistency, the plaintiff blamed his accountant, asserting that he had provided accurate information to the accountant and relied on him to complete the return properly.[107] Mr Batten contended that the amended taxation return was still lacking full disclosure about the plaintiff’s income.
[107]T64-65
108 In fact, the plaintiff used the excuse that his accountant was at fault for all inaccuracies found in all of the relevant returns. The plaintiff testified that his accountant is not a friend.[108] No motive was offered by the plaintiff to explain why the accountant would understate the plaintiff’s income or why he would omit important details about the plaintiff’s various sources of income.
[108]T32
109 There was also a discrepancy in the plaintiff’s taxation return for the year 2015 to 2016, the year in which he returned to taxi driving,[109] which work the plaintiff continued until his surgery in the following financial year. There is apparently no mention of income derived from taxi driving in the return.
[109]Exhibit C, paragraph 40
110 Mr Batten put to the plaintiff that the plaintiff had not disclosed earnings from his taxi and Uber driving, to which the plaintiff responded he had “hand to you to my accountant” and was “paying the tax from him”.[110]
[110]T30-31
111 The plaintiff was also questioned about his taxation returns for the financial years ending 30 June 2010, 2011 and 2013, for which he declared gross incomes of $6,850, $5,240 and $6,210 respectively. The plaintiff did not recall the amount of his 2010 return, stating “… it’s a long time”.[111] In relation to 2011, the plaintiff repeated, “I’m just given to all information to my accountant and he like lodged for me”.[112]
[111]T31
[112]T31
112 On further questioning from Mr Batten about the plaintiff’s truck driving for his previous employer, GEJ Transport, between 2010 and 2012, as deposed to in his affidavit, the plaintiff confirmed that he had driven for this company for approximately two years. When pressed, he estimated that he had earned approximately $900 to $950 gross per week in this role, or approximately $50,000 per annum, again stating that he had disclosed this to his accountant.
113 Under cover of a certificate issued under s128 of the Evidence Act 2008, when asked about the taxation return for the year ending 30 June 2014, which declared business income of $11,450, the plaintiff disavowed any responsibility for the understatement of income, again blaming his accountant. When asked whether he signed the return declaring it to be a true reflection of his income, the plaintiff replied that he did not know how to pay tax, and that he was simply directed by the accountant where to sign the document. As to the misdescription of his work as a “courier pick-up and delivery service driver,” the plaintiff stated it was “all a mistake from my accountant,” and that he had not told the accountant that this was his work.[113]
[113]T63-64
114 The plaintiff agreed that his 2014 taxation return had been audited by the Australian Taxation Office, but claimed ignorance as to the reason why this was necessary. He admitted that following the audit he was required to pay an additional amount of taxation. He stated that he was not required to submit a new taxation return for the year ended 30 June 2014, adding that he does not know “about the tax, how to pay the tax, that’s why I go with the accountant”. He testified that he informed the Taxation Office officials who conducted the audit and his accountant that he had been driving trucks for “many years”.[114]
[114]T64-65
115 As to the taxation return for the financial year ending 30 June 2015, the plaintiff claimed to be unaware that the return had again described his main business activity as “courier, pick up and delivery services,” with a gross income for the year of $8,123 plus $34,042 in compensation payments. The plaintiff stated that he was unsure of whether his income from driving taxis between July 2015 and July 2016 would have amounted to between $10,000 and $13,000 gross that year, as the income derived from driving taxis was not fixed.
116 For the financial year ending 30 June 2016, in his taxation return the plaintiff had again described “courier, pick up and delivery services” as his main business activity, a type of employment he claimed to have never undertaken. I should note here that in a sense, the description is not necessarily inaccurate. After all, the plaintiff’s work with the employer, and later with Postar, involved delivering concrete to various worksites. I note that the plaintiff’s business activity was described as “truck driver” in addition to courier driver in the years 2015,[115] 2016[116] and 2017.[117] The plaintiff claimed that he had provided to the insurer his payslips referrable to the financial year ending June 2016. In that financial year, although he claimed not to be able to recall it, the return showed a declared gross income (compensation payments aside) of $2,347.[118]
[115]Exhibit 7, DCB 88
[116]Exhibit 7, DCB 91
[117]Exhibit 7, DCB 94
[118]Exhibit 7, DCB 93
117 In the financial year ended 2017, the plaintiff had described his work activity as truck driving and declared an income of $15,800 (excluding government payments).
118 Contrary to what was declared in the 2018 taxation return wherein the plaintiff’s income was declared as $12,647, Mr Batten confronted the plaintiff with the reality that invoices submitted to Postar referrable to that financial year totalled $34,980, more than double the income declared. The plaintiff eschewed any suggestion that he was responsible for the inaccuracies, again casting the blame onto his accountant.
119 For the financial year ending 30 June 2019, the plaintiff confirmed that the $16,500 declared in his return as income from primary production was in fact income derived from driving. Invoices sent to Postar referrable to that period total $39,154, again more than double the amount declared.
Findings as to the Plaintiff’s credibility
120 I agree with the defendant that the plaintiff’s taxation returns do him no credit. The returns contain significant inaccuracies regarding the sources of the plaintiff’s income and the amount of income derived. The plaintiff accepted no responsibility for the inaccuracies, instead blaming his accountant. The accountant was not called to give evidence and had no opportunity to respond to the plaintiff’s allegation. Nor was any motive suggested as to why the accountant would understate the plaintiff’s income. Regardless of where the fault lies, the fact remains that the taxation returns do not enable the Court to find that they fairly represent the plaintiff’s pre-injury and post-injury earning capacity.
121 Because of the unsatisfactory state of the plaintiff’s financial records, I consider that the plaintiff’s evidence should be scrutinised with caution. I must, however, also allow for the fact that English is not the plaintiff’s first language and that there may be elements of confusion in his evidence and in the histories he gave to various experts.
122 I note that when scrutinising the plaintiff’s evidence, the Court must bear in mind that in order to succeed, the plaintiff’s evidence does not need to be corroborated, although the finding of corroborative evidence would give the Court more comfort in accepting him as a credible witness. The plaintiff’s assertions to the various healthcare practitioners do not amount to “corroboration”, as the plaintiff is the source of the information. That said, the independent findings on examination and/or the results of imaging do tend to confirm aspects of the plaintiff’s evidence.
123 I now turn to the documentary evidence.
The Plaintiff’s treating healthcare professionals
Dr Asim Saghir, general practitioner, Hallam Medical Group[119]
Dr Saghir’s first report, 8 March 2017[120]
[119]Exhibits K and L; Clinical records, Exhibit 8
[120]Exhibit L
124 Dr Asim Saghir has been the plaintiff’s general practitioner since October 2013. The clinical records[121] note that the plaintiff also complained of back pain to Dr Muzaffar at the Hallam Medical Group on 9 January 2014.[122]
[121]Exhibit 8
[122]Exhibit 8, DCB 77
125 According to Dr Saghir, the plaintiff first attended with lower back pain in October 2013, which, in the plaintiff’s opinion, started after he began truck driving.[123] He attended the clinic more regularly for the “work related injury with complaints of lower back pain, radiating to the right leg since September 2014” following the work incident. Dr Saghir noted that the plaintiff had worked for the employer for “quite some time,” and that the work included heavy lifting, pouring concrete and driving on uneven roads. Dr Saghir also noted that the plaintiff continued to work despite experiencing back pain in October 2013. He observed that the plaintiff did not lodge a claim to WorkCover when he first noticed work-related symptoms arising from his lumbar spine. A contemporaneous x-ray report indicated “multiple level disc space narrowing”.
[123]Exhibit L, PCB 139
126 Dr Saghir recounted the incident of 1 September 2014 and noted that since that sudden onset of lower back pain, radiating through the whole right leg to the little toe, the plaintiff had also experienced numbness in the right foot. Dr Saghir noted Dr Hooper’s finding in January 2015[124] that the plaintiff was unfit for any work at that time.
[124]Exhibit W
127 Dr Saghir opined:
“It is quite possible that his injury was aggravation of pre existing medical condition but it can’t be denied that his back condition started since he started working as a truck driver which included lifting and carrying heavy materials.”[125]
[125]Exhibit L, PCB 141
128 Dr Saghir noted that while physiotherapy and painkillers had provided some relief to the plaintiff, they did not improve the condition. He concurred with Mr Xenos’ finding of a “large central and right sided L5-S1 disc prolapsed causing nerve compression”. He agreed with Mr Xenos’ recommendation that a discectomy and S1 rhizolysis should be performed. That surgery took place on 16 December 2016. Dr Saghir noted that the surgery had had a “good outcome” with “improvement in … [the plaintiff’s] back and leg pains and numbness”.[126]
307 Although I accept that because of his underlying degenerative condition of the spine, together with the congenital issues identified, the plaintiff would possibly have had his working life cut short in any event, I am satisfied on the balance of probabilities that because of the nature of his ongoing work with the employer, and in particular because of the incident of 1 September 2014, that potential has been accelerated.
Is the injury a “serious injury” in terms of pain and suffering?
308 In summary, the defendant relied on the arguments previously made to the effect that causation has not been established and that the plaintiff’s current problems are no longer (if ever they were) referable to work with the employer.
309 The defendant did not otherwise challenge the plaintiff’s evidence regarding the consequences of injury.
310 I accept the accuracy of the plaintiff’s evidence regarding the consequences arising from his injury. I shall not repeat them all. Rather, I shall adopt the list of consequences as summarised by the plaintiff’s counsel:[326]
[326]Exhibit Y, paragraph 40
“a.Undergone extensive treatment including invasive surgery and rehabilitation[327];
[327]Ex C para 26
b.ongoing pain of varying degree in the lumbar spine[328];
[328]Ex C para 27
c.ongoing pain of varying degree in the right lower limb;
d.reduced capacity to sit, stand and walk for prolonged periods[329];
e.reduced capacity to drive for prolonged periods[330];
f.disturbed and reduced sleep[331];
g.reduced mobility and flexibility[332];
h.reduced capacity to engage in domestic chores[333];
i.difficulty with activities of daily living such as dressing[334];
j.reduced ability to engage with and care for his children[335];
k.reduced capacity to socialise and play volleyball and cricket with friends[336];
l.reduced ability to engage in the expression of his Sikh faith.”[337]
[329]Ex C para 28 & 29
[330]Ex C para 28
[331]Ex C para 30 & Ex D para 12
[332]Ex C para 31
[333]Ex C para 31 & Ex D para 8
[334]Ex C para 32
[335]Ex C para 33 & Ex D para 9
[336]Ex C para 34 & Ex D para 7
[337]Ex C para 35
311 In addition, I note these consequences:
· ongoing pain on a daily basis requiring medication;
· inability to return to pre-injury employment because of physical limitations and the need for restrictions to be imposed, that loss being a source of frustration and distress;
· any employment in the future must be with restrictions imposed; and
· interference with capacity to enjoy sexual relations.
312 I have included the loss of the ability to return to pre-injury employment in the above list. I have not forgotten that when cross-examined, the plaintiff accepted that his work for Postar is the same as his work for the employer. That concession must be understood in light of the fact that the plaintiff’s work now is “similar”, in that he drives a truck and delivers concrete; however, the conditions of work are not identical. The plaintiff drives a different type of truck. It has better suspension, meaning that there is less vibration. Also, the chute is operated by remote control. The plaintiff is able to receive assistance with his work when he needs it. Moreover, I accept that the plaintiff can no longer perform this work six days a week.
313 I should note that the defendant relies heavily on the opinion of Mr Long to the effect that because Dr Saghir’s clinical records contain no record of any work injury, there was no work injury:
“Throughout these consultations, no record was made of any work injury and in particular, no record of any injury on 1 September 2014 was made in the doctors’ records. Based on this evidence, I now consider that there is insufficient evidence to indicate that his lumbar back pain and right leg sciatica was significantly work-related. If any aggravation had occurred throughout 2014 prior to the stated injury of 1 September 2014, such aggravation would have been temporary over about one day and did not result in him reporting the aggravation to his general practitioner.”[338]
[338]Exhibit 5, DCB 52
314 As has been mentioned earlier, Dr Saghir’s clinical notes do not constitute the whole of the clinical records. Nor do they purport to be a verbatim transcript of everything that was said either by or to the plaintiff. Just because Dr Saghir did not make detailed clinical notes does not mean that the plaintiff was not injured at work. Mr Long and, for that matter, all of the experts, formed their conclusions on the basis of the material they had to hand. I have the totality of the documentary evidence upon which the parties rely, I have had the benefit of hearing the plaintiff give evidence and I have had the advantage of hearing and receiving the submissions of counsel. I respectfully agree with the plaintiff’s counsel, and for the reasons they expressed, that the opinions of the treating general practitioner and treating surgeon about the nature and cause of the plaintiff’s injury should be preferred to the opinions expressed in medico-legal reports.
315 I am satisfied on the balance of probabilities that the consequences of injury have persisted for several years now and that they will continue to persist into the foreseeable future.
Is the injury a “serious injury” in terms of loss of earning capacity?
316 The plaintiff’s credibility is a critical factor in the determination of whether he has satisfied the Court on the balance of probabilities that he has suffered, and will continue to suffer, a loss of earning capacity of 40 per cent or more in accordance with s325 of the Act. It will be recalled that in addition to the other elements set out, the plaintiff’s loss of earning capacity is to be measured by comparing –
“(i)the worker’s gross income from personal exertion (expressed at an annual rate) which the worker is—-
(A) earning, whether in suitable employment or not; or
(B) capable of earning in suitable employment—
as at that date, whichever is the greater, and—
(i)the gross income (expressed at an annual rate) that the worker was earning or was capable of earning from personal exertion or would have earned or would have been capable of earning from personal exertion during that part of the period within 3 years before and 3 years after the injury as most fairly reflects the worker’s earning capacity had the injury not occurred;
… .”[339]
[339]Section 325(2)(f) of the Act
317 As mentioned earlier in this judgment, the plaintiff has not fully disclosed the relevant documents that would have assisted the Court in determining accurately both his “without injury” earning capacity and his “after injury” earning capacity.
318 I respectfully agree with Mr Batten that the plaintiff’s taxation returns do not accurately reflect the plaintiff’s gross income either before or after his injury.[340] The “without injury” returns understate the plaintiff’s income and cannot be relied upon, although I consider this operates to the plaintiff’s detriment since the “without injury” returns reflect a lower earning capacity than the plaintiff had, due to the failure to disclose both his true rate of pay with his previous employer as well as the additional income derived from taxi driving.
[340]Exhibit 12, paragraphs [69]-[71]; [73]-[87]
319 The “after injury” returns are also inaccurate, in that they fail to disclose the plaintiff’s income derived from taxi driving and/or from Uber driving. This failure makes it appear from the returns that the plaintiff may have a greater loss of earning capacity than he actually has.
320 If the Court were to find that the plaintiff has been deceitful about his financial circumstances both before and after his injury, that would not necessarily disentitle him to relief. That is so, because a worker, even if convicted of dishonesty charges, is still entitled to be compensated if injured at work, provided the statutory thresholds are satisfied. The problem is not whether the plaintiff is theoretically entitled to be granted leave, rather the issue is whether he has discharged the burden of proof to the requisite degree assessed on the totality of the evidence.
321 Because the plaintiff’s taxation returns cannot be relied upon as accurate, I put them to one side. The plaintiff must then satisfy the Court, through some other means, of the amount of his gross income (expressed at an annual rate) that he was earning or was capable of earning during that part of the period within three years before and three years after the injury as most fairly reflects his earning capacity had the injury not occurred.
“Without-injury” earning capacity
322 The plaintiff submits that rather than look at the whole of the three-year period before injury, the Court should use the period 3 February 2014 to 1 September 2014 to represent an accurate snapshot of the plaintiff’s “without injury” earning capacity:
“45.The plaintiff submits that for the purposes of a calculation under S.325(2)(e), the figure that most fairly reflects the plaintiff’s without injury earning capacity is a figure of $1,200 gross per week. This is the amount earned by the plaintiff during the period 3 February 2014 to 1 September 2014 whilst working 6 days per week for the defendant (sic)[341].
46.Up to 3 February 2014, the plaintiff earned $1,050 gross per week, working 6 days per week for the defendant (sic)[342].”[343]
[341]Ex E paragraphs [8] & [9]
[342]Ex E paragraph [7]
[343]Exhibit Y
323 The defendant submits:
“Whilst the Plaintiff commenced employment with … [the employer] in January 2013 his work six days a week [earning] $170 per day should have resulted in earnings in the vicinity of $19,000 gross. … .”[344]
[344]Exhibit 12, paragraph [79]
324 It appears that the defendant accepts that when the plaintiff commenced his employment with the employer, he was capable of working six days per week, earning $170 per day. I note that the remittance advices between the period 5 August 2013, the date upon which the plaintiff commenced employment with the employer, until 1 February 2014, do not make clear whether the rate of pay was inclusive of GST, although I note the plaintiff’s ABN was included on each sheet.[345] During this period, the plaintiff’s daily rate of pay commenced at $175 per day, but increased to $200 per day on 3 February 2014, the same day that the remittance advices supplied by the employer state that the pay is inclusive of GST.[346]
[345]Exhibit HB2 attached to Exhibit E, PCB 33 – 38.
[346]Exhibit HB2 attached to Exhibit E, PCB 39-44
325 No evidence was tendered by either party to say whether the plaintiff’s income would have been adjusted either up or down in the next three years.
326 The plaintiff deposed:
“5.The financial year ending 30 June 2014, I earned a total of $52,020.00 gross working for the … [employer]. Over a period of 52 weeks, this equates to approximately $1,000.38 gross per week.
…
7.Up to about 3 February 2014, I was paid $175 gross per day or $1050 gross per week for my 6 days of work for the [employer].
8.From about 3 February 2014 and up until cessation of my work with the [employer] on 1 September 2014, I was paid $200 gross per day or $1200 gross per week for my 6 days of work for the … [employer].”[347]
[347]Exhibit E, paragraphs [5], [7] and [8]
327 Again, I note that $1200 per day was stated in the remittance advices to be inclusive of GST and therefore that figure does not represent the gross figure. The gross figure is $1200 less GST = $1090.91.
328 The plaintiff tendered the remittance advices supplied by the employer for the period 5 August 2013 to 30 August 2014.[348] The remittance advices confirm the plaintiff’s evidence about his “without injury” earning capacity for the period he worked for the employer. The remittance advices also show that the amounts paid were inclusive of GST.[349] It will be necessary therefore to take GST into account when assessing the plaintiff’s “after injury” income earning capacity.
[348]See Exhibit HB2 attached to Exhibit E
[349]As mentioned, the first group of remittance advices do not state one way or the other whether the pay is inclusive of GST, however, the plaintiff’s ABN appears on each remittance advice. Also, the plaintiff was not paid for days he did not work, and no tax was withheld from his pay, making it more probable than not that he was paid as if a sub-contractor responsible for his own taxation obligations.
329 I consider the figure that most fairly represents the plaintiff’s “without injury” earnings is $1090.91 x 48 weeks. It appears from the remittance advices that the plaintiff was not paid for days that he did not work (for example on sick days or holidays). Nor was he paid for the days that the plant was closed (public holidays). That said, examination of the remittance advices shows that the plaintiff had very little time off work for holidays and sick leave. Because the plaintiff made minimal claims for deductions, I have not made an allowance for the plaintiff’s deductions, acting on the assumption for the sake of discussion that he was paid as a sub-contractor using his ABN as referred to in his taxation returns.[350] In my judgment, the “without injury” earnings figure annualised should be 1090.91 x 48 weeks a year = $52,363.68 (exclusive of GST).
[350]Exhibit 7, DCB 84
330 Another way of assessing the plaintiff’s “without injury” earnings is to calculate the number of days or hours the plaintiff was capable of working. It is common ground that before the injury, the plaintiff was capable of working (and did work) six days per week. On the evidence before me, the plaintiff’s working day was 8 to 10 hours. The plaintiff was therefore capable of working up to 60 hours per week.
331 Applying the above calculations, in order to satisfy the Court that the plaintiff has suffered a loss of earning capacity of 40 per cent or more, the plaintiff must prove on the balance of probabilities the loss as follows–
· On the “without injury” earning capacity of $52,363.68 (exclusive of GST) less 40 per cent = $31,418.21;
· On the number of days at six days per week less 40 per cent = 3.6 days per week.
“After injury” earning capacity
332 It is difficult to place a figure on the plaintiff’s actual “after injury” earnings because he has not fully disclosed the amount of income that he has derived or all of the sources from which he derived his income after leaving the employer.
333 The medical evidence overwhelmingly supports the conclusion that the plaintiff cannot return to his pre-injury employment. As mentioned earlier, although the plaintiff is now doing the same sort of work with Postar as he did for the employer, the conditions of work are different.
334 The plaintiff copes with his current work by using pain medication.
335 In the table below I have included details taken from the invoices to Postar[351] for the period May 2017 (approximately six months after surgery) and June 2020:
[351]Exhibit 11 and exhibit HB3 attached to Exhibit E
Month
Days worked
Pay exclusive of GST
July 2017 12 days $2,400 August 2017 12 days $2,400 September 2017 11 days $2,200 October 2017 13 days $2,600 November 2017 15 days $3,000 December 2017 16 days $3,200 January 2018 1 day
(I have assumed that annual leave was taken this month)
$200 February 2018 17 days $3,400 March 2018 15 days $3,000 April 2018 19 days $3,800 May 2018 13 days $2,600 June 2018 15 days $3,000 12 MONTHS (financial year) TOTAL $31,800 July 2018 20 days $4,000 August 2018 18 days $3,600 September 2018 15 days $3,000 October 2018 17 days $3,400 November 2018 12 days $2,280 December 2018 15 days $2,850 January 2019 3 days
(I have assumed that annual leave was taken this month)
4570 February 2019 16 days $3,040 March 2019 16 days $3,040 April 2019 16 days $3,040 May 2019 16 days $3,040 June 2019 14 days $2,660 12 MONTHS (financial year) TOTAL $34,520 July 2019 13 days $2,600 August 2019 12 days $2,400 September 2019 15 days 3,000 October 2019 11 days $2,090 November 2019 12 days $2,280 December 2019 10 days $1,900 January 2020 5 days $950
(I have assumed that annual leave was taken this month)
February 2020 9 days $1,710 March 2020 10 days $1,900 April 2020 12 days $2,280 May 2020 12 days $2,280 June 2020 15 days $2,850 12 MONTHS (financial year) TOTAL $26,240
336 Using the annualised figure of “without injury” earning capacity of $52,363.68 per annum, the plaintiff must prove that he has an “after injury” earning capacity of no greater than $31,418.21. As the table above shows, for the three financial years included, the plaintiff earned $31,800, then $34,520, and in the last financial year, $26,240. In the last financial year, the plaintiff’s income decreased significantly, as he testified. I am satisfied that the last financial year represents the annualised figure that most fairly represents the plaintiff’s “after injury” earning capacity. It represents a whole year prior to the date of hearing, and the date of hearing is the critical date at which to make the assessment.
337 Comparing the plaintiff’s “without injury” earning capacity of $52,363.68 less 40 per cent ($31,418.21) with the plaintiff’s “after injury” earning capacity of $26,240, the plaintiff has demonstrated a loss of earning capacity of 40 per cent or more.
338 It is necessary to pay close regard not only to the plaintiff’s actual “after injury” earnings, but also to the gross income that, as at the date of hearing, he is capable of earning in suitable employment. The defendant did not tender in evidence any expert evidence establishing that the plaintiff is capable of performing any other appropriate alternative employment, and, if so, whether such employment could be performed on a full-time unrestricted basis. In any event, the jobs that were apparently proposed by the defendant were dismissed by the plaintiff’s experts in the reports that were tendered in evidence. I accept those reports, as the findings are consistent with the imaging reports and the reports of the plaintiff’s treating healthcare practitioners. I note that the principal area of dispute between the parties’ medical experts is not about the gravity of the plaintiff’s lumbar condition, but rather about whether the plaintiff’s work with the employer is responsible for it.
339 Regarding the question of whether the plaintiff has a capacity for work greater than that he currently does for Postar, the evidence also establishes that for a period of time while working for Postar, the plaintiff also worked for either Uber or as a taxi driver at least one day per week. I agree with Mr Batten that it is unclear when and if the plaintiff stopped doing that type of work to supplement his income. Accepting Ms Green’s evidence, as I do, I consider that the plaintiff is currently incapable of performing unrestricted taxi driving or driving for Uber. I note that in the Certificate of Capacity dated 9 May 2020,[352] Dr Saghir stated that the plaintiff should only work three days per week, limited to light duties. That position is also consistent with the other evidence previously referred to as relied upon by the plaintiff.
[352]Exhibit V
340 I consider that it is not possible to assess the plaintiff’s “after injury” earning capacity by reference to the number of hours, since the invoices do not state how many hours per day or week the plaintiff worked for the employer or that he currently works. He works until the job is done and that could mean up to 10 hours a day. Any calculation based on the number of hours would be speculative.
341 By reference to the number of days per week that the plaintiff is capable of working, he was previously capable of working six days per week. He is now only capable of working three days per week. On that basis, the plaintiff has demonstrated a loss of earning capacity of 50 per cent, certainly more than the 40 per cent required by statute.
342 Regardless of whether the plaintiff has expressed a fear of being able to sustain working at his current levels, the evidence shows that he has been, and will continue to be, capable of earning no more than 60 per cent of his pre-injury income.
Conclusion – loss of earning capacity proved
343 In view of the findings set out above, the plaintiff has established on the balance of probabilities that he has suffered, and will continue to suffer, a loss of earning capacity of 40 per cent or more.
Final conclusions and orders
344 The plaintiff has satisfied the Court on the balance of probabilities that he has suffered a loss or impairment of the lumbar spine by way of aggravation of a pre-existing degenerative condition. The loss or impairment includes an L5‑S1 central posterior disc bulge, right lower limb radiculopathy with sensory disturbance, and chronic pain and restriction of movement.
345 The plaintiff has satisfied the Court on the balance of probabilities that his loss or impairment of that body function was sustained progressively over the period of his employment, due to the nature of his work with the employer.
346 The injury is permanent, that is to say it will persist into the foreseeable future.
347 The plaintiff has established on the balance of probabilities that the pain and suffering consequences of the impairment or loss of body function is, when judged by comparison with other cases in the range of possible impairments or losses of a body function, fairly described as being more than significant or marked, and as being at least very considerable.
348 The plaintiff has established to the requisite degree that the loss of earning capacity consequence passes the statutory threshold.
349 Accordingly, the plaintiff must be granted leave to bring common law proceedings to recover both pain and suffering damages and pecuniary loss damages for personal injury sustained throughout the course of his employment with the employer.
350 I shall hear the parties on the question of costs.
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