Bullion v Australian Nationwide Investments Pty Ltd
[2020] VCC 1395
•8 September 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-19-05788
| RAYMOND LESLIE BULLION | Plaintiff |
| v | |
| AUSTRALIAN NATIONWIDE INVESTMENTS PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE CARMODY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24, 25 and 26 August 2020 | |
DATE OF JUDGMENT: | 8 September 2020 | |
CASE MAY BE CITED AS: | Bullion v Australian Nationwide Investments Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1395 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – lower back injury – loss of earning capacity arising from injury to lower back at work – whether consequences for the plaintiff amount to “serious” under the Act – whether the aggravation to the plaintiff’s pre-existing psychiatric condition satisfied to the severe test required under the Act – credit of the plaintiff
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s325 and s335
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Petkovski v Galletti [1994] 1 VR 436; TBSMS Pty Ltd v Reading [2020] VSCA 203; Aluthgamage v Select Care Personnel Pty Ltd [2012] VSCA 111
Judgment: Leave is granted to the plaintiff to bring common law proceedings to recover damages for pain and suffering and loss of earning capacity damages arising from an injury to his lower back in the course of his employment with Australian Nationwide Investments Pty Ltd which occurred on 25 July 2017. The application for leave to bring common law proceedings based on a mental or behavioural disorder is dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A D B Ingram QC with Ms F Blair | Nowicki Carbone Lawyer |
| For the Defendant | Mr B McKenzie | Wisewould Mahony |
HIS HONOUR:
1 This is an application brought by Originating Motion dated 2 September 2019, whereby the plaintiff sought leave pursuant to s335 of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the WIRCAct”) to bring proceedings to recover damages suffered by him arising from his employment with Australian Nationwide Investments Pty Ltd. The plaintiff alleges he was injured in the course of his employment on 25 July 2017.
2 The plaintiff seeks leave to bring proceedings to recover pain and suffering damages and loss of earning capacity damages. The plaintiff seeks leave pursuant to the definition of “serious injury” on two bases: First, a serious long-term impairment or loss of bodily function to his lower back; and, second, a long-term psychological or mental disorder.
3 The following evidence was adduced during the hearing.
·The plaintiff gave evidence and was cross-examined.
·The plaintiff’s general practitioner, Dr Cesar Tan, gave evidence and was cross-examined.
·Exhibit “A” was the Plaintiff’s Court Book (“PCB”), pages 1 to 259 inclusive.
·The defendant tendered the following exhibits, exhibit 1, the Defendant’s Court Book (“DCB”), pages 2 to 184 inclusive.
4 At the commencement of the proceeding, Mr McKenzie, counsel for the defendant, identified the following issues as relevant in this application:
(a)whether the plaintiff has satisfied that there was an occurrence of a compensable injury to him either on 24 July or 25 July 2017;
(b)the credit of the plaintiff;
(c)whether the plaintiff can satisfy the serious injury test in respect of a lower-back injury when taking into account all of the other physical injuries suffered by the plaintiff, including his knees, shoulders and other medical conditions identified by the treating general practitioner;
(d)the plaintiff does not satisfy the statutory level of pain and suffering damages as a result of the physical injury to his back by way of aggravation (a range case); and
(e)the plaintiff does not satisfy the statutory level for a long-term mental disorder as a result of the aggravation caused by the alleged injury on 25 July 2017.
The statutory scheme
5 The application is brought under the definition of “serious injury” contained in s325(1) of the WIRC Act, which requires the plaintiff to prove that he has suffered a “permanent serious impairment or loss of body function”.
6 The relevant considerations which apply to such an application are as follows:
(a)the plaintiff must prove that he has suffered a compensable injury; that is, an injury which he suffered arising out of, or in the course of his employment on or after 1 July 2014;[1]
(b)the injury and the impairment must be permanent; that is, permanent in the sense that it is “likely to last for the foreseeable future”;[2]
(c)the plaintiff bears the burden of proof to be determined upon the balance of probabilities;
(d)subsection 2(c) provides that the impairment must have consequences in relation to pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may be fairly described as being “more than ‘significant’ or ‘marked’, and as being “at least very considerable”;
(e)subsection 2(h) provides that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purpose of paragraph (c) of the definition of “serious injury” and not otherwise;
(f)a mental or behavioural disturbance or disorder shall not be held to be severe for the purposes of this application unless the pain and suffering consequence or the loss of earning capacity consequence is, when judged by comparison with other cases in the range of possible mental or behavioural disturbances or disorders, as the case may be, fairly described as being more than serious to the extent of being severe;
(g)in conformity with Barwon Spinners,[3] I must identify the injury and the impairment said to be produced in consequence of the injury; whether the impairment is permanent; that is, likely to last for the foreseeable future, and whether the consequences for the plaintiff are such as to satisfy the “very considerable” test contained in ss2(c). I have applied the principles set forth therein in reaching my conclusions in this application.
[1]See s1 of the WIRC Act, and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at paragraph [11]
[2]Barwon Spinners (ibid) at paragraph [33]
[3]ibid
7 I am required to give detailed reasons which are as extensive and complete as the Court would give on the trial of an action and in doing so, to disclose my pathway of reasoning in dealing with the evidence and the issues raised by the application.
The Plaintiff’s background
8 The plaintiff was born in the United Kingdom in 1957. He is now sixty-three years old. He migrated to Australia in 1991.[4] The plaintiff’s education was to Year 10 level. He then completed an apprenticeship as a painter.[5]
[4]PCB 15-16
[5]PCB 15
9 The plaintiff is a single man who lives with his landlord, Phil Atkins. He is the father of three children, all of whom are in their thirties. He has a total of six grandchildren between the ages of two and fifteen.[6]
[6]PCB 16
10 The plaintiff has a partner, who he describes as his fiancée, who lives in the Philippines.
11 The plaintiff’s main work history has been that of a painter and decorator. The plaintiff had not worked between the latter part of 2012 until his employment commenced with Australian Nationwide Investments Pty Ltd on 6 December 2016. In the period of unemployment, the plaintiff had a litany of physical complaints and treatments, together with prescriptions for depression medication, commencing in or about March 2013.
12 A brief summary of the previous physical injuries suffered by the plaintiff is as follows:
Shoulders
13 The plaintiff dislocated his left shoulder in 1999. He has had a series of dislocations since that time, more particularly up until 2001. The dislocation of his left shoulder was a recurrent problem. He has been advised that no surgery can repair his left shoulder.
14 In 2013, the plaintiff had difficulties with his right shoulder.[7]
[7]PCB 16
Knees
15 The plaintiff has had both of his knees totally replaced. The left knee was replaced in 2015 and the right knee was replaced in 2013.[8]
[8]PCB 104
Lower back
16 The plaintiff’s difficulties in relation to his back and lower-back pain commenced in 2012.[9] The plaintiff had an admission to the Townsville Hospital for an abscess in relation to his cervical and thoracic spine. He was hospitalised in Townsville Hospital and was there for approximately six weeks. Since that time, the plaintiff has had numerous MRI scans of his whole spine in respect of the treatment to his back as a result of the infectious diseases diagnosis.
[9]PCB 16
17 In February 2013, the plaintiff first attended upon Dr Tan at the Sunshine City Medical Centre in relation to lower-back pain.[10] The plaintiff has continued to be a patient of Dr Tan from that day until the day of the hearing.
[10]DCB 42
18 Prior to the plaintiff’s employment with the defendant in this application, a CT scan of his lumbar spine was performed on 1 August 2016. The conclusion of that CT scan was as follows:
“Degenerative disc disease, particularly at L3-4 and L5-S1 levels with moderate central canal stenosis at L3-4 and severe left L5-S1 foraminal and moderate left S1 lateral recess stenosis with probable compression of the left L5 and S1 nerve roots. Left L5-S1 facet joint osteoarthritis.”[11]
[11]PCB 71
Anxiety and depression
19 The plaintiff first attended upon Dr Tan for his anxiety and depression symptoms in March 2013. A mental health plan was created.[12] The plaintiff did not have a treating psychiatrist, although he was referred to a psychiatrist by Dr Tan. The plaintiff was prescribed Pristiq by Dr Tan in June 2014.[13] Prior to the plaintiff’s employment with Nationwide Freight Services, he was suffering from lowered mood, depression and anxiety symptoms, including insomnia.
[12]PCB 44
[13]DCB 53
20 I accept the plaintiff’s evidence that he was not taking Pristiq medication during the course of his employment with Nationwide Freight Services. He stated that his mood improved, and he did not require it. I accept that evidence from him, the plaintiff’s evidence is corroborated by Dr Tan, who did not prescribe the plaintiff Pristiq in the period of his employment with Nationwide Freight Services.
21 On 8 August 2016, some four months prior to the plaintiff commencing work with the defendant in this application, his general practitioner, Dr Tan, prepared a certificate for Centrelink.[14] The relevant sections of the Certificate are as follows:
[14]DCB 121-122
“Dear CENTRELINK,
Re: Raymond Bullion, DOB: ## 1957
…
Mr Raymond Bullion, age 60 yrs, has been suffering from the following conditions:
ANXIETY & DEPRESSION
Gastro-oesophageal Reflux
HEAVY SMOKER
left shoulder injury/ inoperable
LOWER BACK PAIN / DISC BULGING
MASSIVE TEARS OF TENDONS OF THE R SHOULDER
MODERATELY ENLARGED PROSTRATE
OA (Osteoarthritis)
Recurrent shoulder dislocation
SPINAL INFECTION
Total knee replacement
As a result of these conditions, I believe that he remains totally incapacitated for any type of employment;
He has been experiencing loss of concentration, lack of motivation, difficulty of sleeping, lack of self esteem, lack of energy, shortness of breath on exertion, letahryg and lack of energy, pain on lower back, right and left shoulder pain with limited movements.
I believe that his condiitons adn disability will continue indefinitely.”[15]
(sic)
[15]DCB 121
22 The report to Centrelink then went on to set out the full extent of the medications taken by Mr Bullion at that time.
23 Despite that certification by his general practitioner, the plaintiff managed to obtain employment as a truck driver delivery person with Australian Nationwide Investments Pty Ltd on 6 December 2016. Mr Bullion continued to work for his employer in that capacity from that time until 25 July 2017. It is accepted in the evidence that his employment was usually six days per week. The plaintiff included weekly payslips from his employer from 10 December 2016 until 28 July 2017. These documents appear in the Plaintiff’s Court Book between pages 24 and 49. Those records reveal that the plaintiff worked between fifty and sixty hours per week for the whole of the period. His evidence is that he did not take a day off work and I accept that evidence. He was not challenged about that statement.
24 The evidence reveals that the plaintiff had attended his general practitioner for lower-back pain on four separate occasions while he was employed as a truck driver. These attendances were prior to the date of his injury. The dates of attendance for his lower-back pain were 3 February 2017, 30 May 2017, 1 June 2017 and 26 June 2017. The general practitioner’s notes and evidence reveal that the plaintiff did attend on other occasions for different complaints from the lower-back pain. An example of that was as late as 21 July 2017, the plaintiff attended on Dr Tan for acute bronchitis. Despite the plaintiff’s attendance on the general practitioner for low back complaints on four separate occasions in the period of his employment, he did not take one day off work and continued working at the usual rate, as set out in his weekly payment sheets.
The Plaintiff’s employment with the Defendant
25 The plaintiff commenced employment with the defendant on 6 December 2016. The plaintiff described his work duties in the following terms:
“I was a truck driver. I was responsible for loading and unloading parcels. About 3 times a day I did deliveries in Springvale. I also had to do large deliveries of airport parcels to Tullamarine Airport, which were on pallets on containers. The airport pallets were usually removed from my truck using pallet jacks and forklifts therefore I wasn’t required to manually unload the containers myself. The Springvale deliveries, however, required me to unload the parcels. The loading and unloading work was difficult and required repetitive lifting of boxes and parcels which weighed anywhere from about 1kg to 30kgs. Some of the boxes needed to be collected from overhead height which required me to reach and pull, while others which were located lower down and required me to bend and lift. Despite the fact that I had previously had knee replacements and problems with my shoulders, I was able to do the job. I did however have to avoid kneeling because of my knees.”[16]
[16]PCB 17
26 In his initial affidavit dated 19 November 2019, the plaintiff described his injury in the following terms:
“On 24 July 2017, I was at the Springvale depot. The container at the back of the truck was packed fully to the roof from the night before. I didn’t do the packing. It was my job rather to unload what was already packed into the truck. I had to pull a box down to unload it. It was very heavy. I think it weighed around or even more than 30kg. It was packed to the top of the container, so I had to reach above head height to get it. As I pulled the box down, I felt pain in my low back, buttocks and left leg. I also had pins and needles down my left leg to my toes. I kept working hoping the pain would go away but it didn’t. I didn’t go to my next shift. I had pre-planned annual leave around the last week of July and first week of August 2017. I was going to the Philippines for the first time to meet my fiancé[e]. It was very disappointing that my first trip turned out the way it did because of my back pain. I was in so much pain on the way to the Philippines. I was there for 8 days and 7 days out of 8 I stayed in the hotel for most of the day because my low back was so sore.”[17]
[17]PCB 18
27 In his third affidavit dated 11 June 2020, the plaintiff clarified some details about the dates of his injury. At that stage, he had had the advantage of work records and noted that his last day of employment was in fact 25 July 2017, which was the day he injured his back. In that same affidavit, he clarified entries he had made in the Claim Form dated 11 September 2017. In particular, the plaintiff sought to clarify the time at which his injury occurred. In the Claim Form he noted it as 5.30pm on 24 July 2017. The daily run sheet for 25 July 2017 had a finish time of 1.45pm.[18] The plaintiff agreed that he had filled out the daily run sheet and that was accurate. His evidence was that that was the last day he worked as a result of his injury to his back. I accept his evidence given before me that he injured his back at work on 25 July 2017.
[18]DCB 34
Medical treatment after the date of injury
28 The plaintiff attended his general practitioner, Dr Tan, on 26 July 2017, complaining of lower back pain/disc bulging. The notations by the doctor in his records do not go any further than that description.[19]
[19]DCB 76
29 The following day, 27 July 2017, the plaintiff re-attended his general practitioner, Dr Tan. On this occasion, his reason for going to the doctor was twofold. The first complaint the plaintiff was making was pain in his epigastrium. The second complaint was a continuation of his symptoms in respect of lower-back pain. On this occasion, Dr Tan prescribed the plaintiff with Lyrica, 70 milligram.[20]
[20]DCB 77
30 It is to be noted that the plaintiff then went on his holiday to see his fiancée in the Philippines. His holiday was pre-booked, and he left Australia on 28 July 2017.
31 The plaintiff returned to see Dr Tan on 7 August 2017. On that occasion, he was complaining of lower-back pain which was radiating down his left leg. Dr Tan ordered a CT scan of his lumbar spine and prescribed Ibuprofen and Panadeine Forte to relieve his symptoms. He was also prescribed Targin, 15 milligram.
32 On the following day, 8 August 2017, the plaintiff underwent a CT lumbar-spine-guided injection, described as a nerve block. This procedure was performed by Dr N Tran.[21]
[21]PCB 73 and 74
33 On 7 September 2017, the plaintiff re-attended Dr Tan. Dr Tan noted, for the first time, that the lower-back pain was as a result of a lower-back injury which started in July 2017, with radiation into the left leg.[22] Dr Tan, in his evidence, stated that he was aware that the plaintiff had injured himself at work but was unable to be certain as to when he was told that by the plaintiff. Dr Tan’s memory was that the injury was as a result of heavy lifting. In his report dated 30 July 2020, Dr Tan stated as follows:
“To the best of my recollection on the 27th July 2017, Mr. Bullion came to see me with complaint of lower back pain which was sustained whilst he was unloading his truck of heavy panels.”[23]
[22]DCB 78
[23]PCB 251
34 In the same report, Dr Tan notes as follows:
“It should be noted that Mr. Bullion had returned to work on 6th December 2016 and was able to work until 25th July 2017. He has remained totally incapacitated for any type of employment since he injured himself at work on 25th July 2017.”[24]
[24]PCB 252
35 The plaintiff has not had any further invasive procedural treatment by the medical profession since the CT-guided nerve block on 8 August 2017. The plaintiff has continued with conservative treatment by taking pain-relieving medication, as prescribed by his general practitioner.
Medical opinions
Mr John O’Brien, orthopaedic surgeon
36 The plaintiff was examined by Mr John O’Brien, orthopaedic surgeon, for the purposes of this litigation. He prepared a report dated 14 February 2018. While Mr O’Brien did not obtain a full and detailed history from the plaintiff about his prior back injuries, he did examine the plaintiff and was aware that the plaintiff had been previously examined and had a CT scan of his lumbar spine as late as August 2016. In Mr O’Brien’s opinion, in respect of the plaintiff’s ability to engage in paid employment, he stated as follows:
“The patient certainly does describe ongoing disability associated with his chronic back and leg pain. Physically I would consider this patient is not capable of a return to his pre-injury occupation, which clearly involved quite heavy physical duties. In fact I would consider that currently the patient is not capable of undertaking any form of manual employment. It is noted that the patient has a long history of bilateral knee pathology, resulting in the patient undergoing bilateral total knee replacement. This it would appear prevented the patient from continuing his long-term employment as a painter and decorator, but was not a source of pain in the patient’s recent employment as a truck driver. I would therefore conclude that from the physical perspective that back pain is the predominant source of incapacity, when one considers the patient’s employment background, which basically involves manual work, this patient now is totally incapacitated and it does now appear likely this is a permanent situation. Certainly the patient is definitely restricted in his general, social, domestic and recreational activities and this is likely to be ongoing.”[25]
[25]PCB 106
Mr Thomas Kossmann, orthopaedic surgeon
37 The plaintiff was examined by Mr Kossmann, who prepared three reports, dated 2 July 2018, 16 September 2019 and 4 March 2020. In his final report, Mr Kossmann notes that the radiological evidence he was provided with – including x-ray reports and CT scans – did not display any variations from the previous examinations.[26]
[26]PCB 165
38 Mr Kossmann’s opinion was that the plaintiff had no capacity to perform suitable employment and that, in his opinion, the incapacity was likely to continue for the foreseeable future.[27]
[27]PCB 163
Dr Robyn Horsley, occupational physician
39 Dr Horsley provided a medico-legal report dated 6 June 2019 in respect of this proceeding. In the body of her report, Dr Horsley took a note that the plaintiff gave a history that he worked the day after his injury. In his evidence, the plaintiff disavowed this statement and stated that he did not work after 25 July 2017.[28] Dr Horsley noted the considerable medical difficulties that the plaintiff had prior to the injury on 25 July 2017. In particular, she noted the pre-existing degenerative changes to his lumbar spine. In her opinion, the plaintiff, on the basis of his back condition alone, has no real capacity for work and she was of the opinion he had come to the end of his working life.[29]
[28]PCB 172
[29]PCB 179
40 In her report dated 4 June 2020, Dr Horsley noted that the CT scan in April 2019 is compatible with the previous MRI scans which were performed on the plaintiff’s back in 2013 and 2012. She remained of the opinion that the plaintiff was unable to work.[30]
[30]PCB 250
Dr Ales Aliashkevich, neurosurgeon and spinal surgeon
41 Dr Aliashkevich prepared a report dated 25 May 2020 for the purposes of this litigation. It was an extensive report, detailing the opinions of many of the treating physicians and medical practitioners that have seen the plaintiff over a long period of time. In his report, Dr Aliashkevich agrees with the opinions of Mr O’Brien, Mr Kossmann and Dr Horsley, that the plaintiff has no employment capacity into the future.[31] Dr Aliashkevich was unable to identify any variation in the provided documentation and radiological results that were sent to him.[32]
[31]PCB 231-232
[32]PCB 233
Mr Vasudeva Pai, orthopaedic surgeon
42 The plaintiff was examined by Mr Pai, on behalf of the defendant, for the purposes of medico-legal reporting. He prepared two reports, dated 17 May 2018 and 15 November 2019. In his first report, Mr Pai stated that he was unable to relate the back symptoms complained of by the plaintiff to the injury stated to have occurred on 24-25 July 2017. In his later report dated 15 November 2019, Mr Pai stated as follows:
“In my opinion, there are no appreciable changes in the pathology before and after 24.07.2017 from an acute structural pathology aspect and I can only see a natural progression of lumbar spondylosis than that which has been caused by the stated lifting episode of 2017.”[33]
[33]DCB 15
43 In conclusion, Mr Pai’s opinion was that the plaintiff suffered no further injury to his back in the alleged incident of July 2017.
Dr Mary Wyatt, occupational physician
44 Dr Wyatt examined the plaintiff and prepared two reports, dated 14 September 2019 and 12 November 2019. Dr Wyatt noted the results of the CT scans conducted in August 2016 and August 2017. She stated that there was no material difference between the reported results and no evidence of a localised disc protrusion. She noted that the clinical indication in the August 2016 report is of a lower back injury and disc prolapse, suggesting that Mr Bullion had leg pain at the time he was referred for the scan in August 2016.[34] Dr Wyatt went on to suggest that the plaintiff was unfit for any significant manual handling employment which would involve regular lifting or bending. In her opinion, he was capable of doing a sedentary role. She nominated the roles of a driver as a taxi driver, chauffeur or Uber driver.[35]
[34]DCB 20
[35]DCB 23
45 In her final report, Dr Wyatt stated that the incident of July 2017 may have caused an exacerbation of pain in his lower back at that time. In her opinion, she would have expected that not to be a long-term problem.
46 In conclusion, the medical opinions are divided. Mr Pai and Dr Wyatt are of the opinion that at best for the plaintiff, there would have been a slight aggravation over a limited period of time to his lower-back symptoms as a result of any injury he suffered in the course of his employment on 25 July 2017.
47 I have had the advantage of seeing Dr Tan give his evidence. He was extensively and intensively cross-examined by Mr McKenzie, counsel on behalf of the defendant. Dr Tan impressed me as a straightforward and caring doctor who had the interests of his patient at heart. Dr Tan agreed that his notetaking and, in particular, history of matters, were not recorded in the most complete manner. He stated that he has had long-term treatment of the plaintiff, and the result of the injury which the plaintiff suffered in July 2017, is that he definitely cannot engage in any term of employment in the future.
48 Dr Tan confirmed that he was of the impression, and took a history from the plaintiff, that it was as a result of lifting heavy panels. This history of the injury is different from the evidence of the plaintiff, who states that he actually injured his back when he caught, in effect, a falling parcel while unloading his truck. The discrepancy between the recording of the mechanism of injury by the general practitioner and the evidence of the plaintiff are not that significant in this case. Dr Tan agrees he is not the best at taking histories and a close examination of his clinical notes bears that proposition out.
49 On 3 June 2019, Dr Tan completed a medical report to support an application by the plaintiff for a disability support pension with Centrelink. In the report to Centrelink concerning his application for the disability support pension, Dr Tan stated the following:
“Mr Raymond Bullion, age 60yrs 8mths, came to see me on 26 of July 2017 with the complaint of lower back pain. He came back to see me the following day with the same problem and follow up.
A CT scan of the lower back was organised and showed the following findings:
1. Broad based posterior annular L3/4, L4/5 and L5/S1 disc prolapses with marginal osteopathy causing bilateral neuroforaminal stenoses which could impinge on both L3, L4 and L5 nerve roots at these levels.
On the 20th September, Mr Bullion had CT Scan guide injection of steroid in the LS spine which did not provide significant relief of his pain in the lower back.
I have been treating Ms. (sic) Bullion for 15 years now. Her (sic) conditions listed above are fully diagnosed and fully treated and stable.
She (sic) has been experiencing the following symptoms:
- pain in right shoulder
- lower back pain radiating to left leg
- pain in both wrists
- hip pain
- left & right knee pain
- left & right arm pain
- lack of motivation in life
- difficulty sleeping
- lack of energy, constant tiredness
- lack of concentration
- anxiety symptoms
- menopausal (sic) symptoms.”[36]
[36]DCB 123-124
50 In his evidence, Dr Tan agreed he had made a mistake in referring to the plaintiff as “Ms. Bullion” and the gender, and he also stated that the “menopausal symptoms” should not have been in that report. Dr Tan admitted these were errors on his part.
The credit of the Plaintiff
51 The plaintiff’s credit in this case was very directly attacked. In effect, he was accused of lying about any incident which occurred, causing an injury to his lower back at work, either on 24 or 25 July 2017. I have had the advantage of seeing the plaintiff give his evidence, and while he, on various occasions, has given slightly different versions of how he became injured and the dates and times at which he became injured, in the overall assessment of his credibility, they amount to nothing. The plaintiff, after he was able to check with the records of his employment and hours of work on the given days, that is, 24 and 25 July 2017, could properly isolate the date of his injury. The injury on 25 July 2017 is followed by him presenting to his general practitioner complaining of lower-back pain the very next day, on 26 July 2017. He has then, on 27 July 2017, attended his general practitioner for further treatment of his lower-back pain and, on that occasion, was prescribed Lyrica for the first time.
52 When the plaintiff was confronted with the various discrepancies (if I could call them that), he readily made concessions about his inability to recall matters accurately. He conceded he understood the significance of the discrepancies in the documentation. The plaintiff lacked the guile and provocation of a liar and a cheat.
53 I found the plaintiff to be straightforward and honest in his evidence and that he was attempting to present, as best he could, the facts in this case. I accept that the plaintiff, in 2016, had difficulties with his back, together with many other medical complaints. Despite those difficulties, he was under some financial pressure and wanted to improve his position. To that end, he went out and obtained employment with the defendant in December 2016. He continued for almost eight months in full-time employment, working up to fifty to sixty hours a week. He did not take a day off work in that time. He was not challenged about that evidence. During the time of his work, he did attend on the general practitioner for lower-back pain on no less than four occasions prior to the injury date. The big change is that now he cannot work. The reason he cannot work is that he injured himself on 25 July 2017. I find that injury has not been a bump in the road, as Dr Wyatt would describe it, but has been the final insult to his back.
54 The injury to his lower back has rendered him incapacitated for all work.
55 In short, the plaintiff has lost his ability to engage in any form of suitable employment and completely lost any ability to earn income. The loss of the ability to work is permanent, in the sense, it is for the foreseeable future.
Conclusion
56 In respect to the lower-back injury, I find that the plaintiff has suffered a “serious injury” as defined under the WIRC Act. I accept the plaintiff was taking pain-relieving medications prior to the injury and that his sleep was disturbed, and a number of other consequences and medical conditions that he has deposed to were all in place before his injury in July 2017. The one significant consequence that has resulted from his injury on 25 July 2017 is he now has no capacity to engage in paid employment.
57 The plaintiff had worked continuously for a period of approximately eight months prior to his lower back injury on 25 July 2017. Prior to 6 December 2016, the plaintiff had not been engaged in paid employment due to the combination of many physical and other medical conditions, including low back pain, for years. In the eighth-month period of the employment with the defendant, he earned an average of approximately $1,800 to $2,000 gross per week.[37] I accept those earnings properly disclose his “without injury” earnings prior to his back injury on 25 July 2017. I find that his loss of earning capacity has been completely extinguished as a result of the back injury on 25 July 2017.
[37]PCB 24-49
58 The plaintiff has satisfied the statutory test that the consequence of his loss of earning capacity is “more than significant or marked” and is properly considered as being “at least very considerable” when compared with other cases in the range of possible impairments or loss of earning capacity claims.[38]
[38]Aluthgamage v Select Care Personnel Pty Ltd [2012] VSCA 111 at paragraph [49]
The mental or behavioural disturbance or disorder of the Plaintiff as a result of the accident
59 In this application, there was no treating expert medical reports concerning the plaintiff’s mental or behavioural disorder prior to the subject accident. I accept on the evidence that, during the course of the plaintiff’s period of work between December 2016 and July 2017, his mental health condition improved. Dr Tan gave evidence that there were no prescriptions for Pristiq. Nevertheless, the plaintiff had been taking Pristiq and had been referred for psychological counselling prior to the injury in 2017 and also prior to his employment in 2016.
60 After the injury, I accept the plaintiff’s mental or behavioural disorder have returned. He is now back on medications for it, and the clear medical evidence is that the plaintiff now suffers from depression and anxiety. I will not detail the full medical opinions in respect to his mental health status. What is clear from the evidence as it was presented in Court, is that the plaintiff has failed to establish that the aggravation to his mental or behavioural disturbance or disorder is of the extent that could be properly described as “severe”, as required under the WIRCAct.
61 On the basis of that finding, the application for serious injury under paragraph (c) of the definition of “serious injury” is not made out. The application under paragraph (c) is dismissed.
Conclusion
62 The plaintiff’s application for leave to commence proceedings for pain and suffering and loss of earning capacity as a result of the injury to his lower back on 25 July 2017 is granted. The application by the plaintiff for leave to commence proceedings in respect of damages for pain and suffering and loss of earning capacity damages arising from the mental or behavioural disturbance as a result of the injury he received on 25 July 2017 is dismissed.
63 I had announced in Court that I was prepared to certify for two days of Court appearance, given the manner in which the case was conducted. In fact, it took three days. I request for parties to prepare Minutes of Consent Orders in respect of costs in this proceeding. Otherwise the question of costs are reserved.
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