Carr v Southern Cross Precast Pty Ltd
[2013] VCC 1297
•1 August 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION SERIOUS INJURY | Revised Not Restricted Suitable for Publication |
Case No. CI-11-00529
| SIMON CARR | Plaintiff |
| v | |
| SOUTHERN CROSS PRECAST PTY LTD | Defendant |
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JUDGE: | HER HONOUR JUDGE CAMPTON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 July 2013 | |
DATE OF JUDGMENT: | 1 August 2013 | |
CASE MAY BE CITED AS: | Carr v Southern Cross Precast Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1297 | |
REASONS FOR JUDGMENT
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Subject: Serious injury – Consequences of injury – Pain and suffering only
Catchwords:
Legislation Cited:
Cases Cited: Barwon Spinners Pty Ltd v Podolak & Ors (2005) 14 VR 622 – Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69 – Sabo v George Weston Foods [2009] VSCA 242.
Judgment:
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A. Hill | Slater & Gordon Lawyers |
| For the Defendant | Ms R. Kaye | Hall & Wilcox Lawyers |
HER HONOUR:
Introduction
This is an application for leave to bring proceedings for damages pursuant to s. 134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of his employment with the defendant between February 2007 and 24 November 2008.
The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering only. The plaintiff’s application is pursuant to clause (a) of the definition of “serious injury” in s134AB(37) of the Act. In this section, “serious” is defined as meaning, inter alia, “(a) permanent serious impairment or loss of body function.”
The body function relied upon by the plaintiff is the back. The main issue in this case is whether or not the consequences of any injury suffered by the plaintiff to his back amounts to a serious injury.
The plaintiff was called to give evidence and relied on three affidavits, dated 4 October 2010 (“the first affidavit”), 23 May 2012 (“the second affidavit”) and 1 July 2013 (“the third affidavit”). None of the doctors whose medical reports relied on were called to give evidence. Surveillance DVD footage of the plaintiff was tendered by the defendant.
Background
The plaintiff’s background details were set out in his first affidavit. He was born on 29 July 1971 and is now aged 41. After finishing school, he obtained a number of jobs, mainly of a labouring type, including concreting and working in a timber yard.
In February 2007, he began working as a steel fixer for the defendant on a full-time basis. The work as a steel fixer was physically demanding. The work included cutting steel mesh /formwork variously with bolt cutters, grinders or guillotines, tying the steel and moving large pieces of steel form work about. In addition, sometimes he would have to lift and carry large and heavy support props.
During the course of his work for the defendant, the plaintiff would sometimes get a sore lower back. He recalled this occurring in March 2008. However, after time off and painkiller medication, his back pain lessened somewhat.
Then in 2008, particularly in November, after a period of about a couple of weeks when he had been bending over a lot and cutting steel mesh with bolt cutters, his back pain became bad.
Because of his back pain, the plaintiff was off work from 24 November 2008 until January 2009, when he returned on modified duties and decreased hours. He was retrenched in May 2009.
Treatment and investigations
The plaintiff attended Beach Street Family Medical Centre in Frankston where he saw Dr Leonid Gankin. He received prescriptions for the painkillers Tramadol, Endep and Panadeine Forte.
The plaintiff also received treatment from Mark Haligan, a physiotherapist, who reported seeing him on three occasions. However, the plaintiff was unwilling to commit to Mr Haligan’s recommended treatment plan and when he last saw the plaintiff, on 2 December 2008, Mr Halligan reported that he was “still suffering from acute symptoms and it was impossible for him to comment on a likely prognosis.”
On 9 January 2009, the plaintiff had a CT of his lumbosacral spine which was normal other than a disc bulge at L4-5 and the lumbosacral disc showing slight midline posterior bulging.[1]
[1]Plaintiff’s court book (“PCB”), p. 97.
When the plaintiff attended the Beach Street Family Medicine Clinic he also saw Dr Poolbalan Naidoo. In his report of 22 September 2009, Dr Naidoo diagnosed the plaintiff as suffering from somatic referred pain possibly from the discs. In his opinion, the plaintiff’s prognosis was guarded. Although his activities of daily life were unaffected, bending would reduce his physical activity and chronic pain may predispose him to depression. Modified duties with avoidance of excessive bending was recommended.
The plaintiff was referred to Dr Neels du Toit, who reported on 24 April 2009 that the plaintiff had presented with a 12 month history of lower back pain and that, in his opinion, the pain was discogenic in nature. [2]
[2] PCB, p. 29.
Dr du Toit arranged for an MIR on 1 May 2009, which revealed that there was an annular disc tear at L5-S1, together with mild central protrusion. There was also borderline spinal canal stenosis at L4-5.[3]
[3] PCB, p .97A-97B.
On 9 July 2009, the plaintiff had bilateral medial branch blocks, of the L3, L4 and L5 medial branches, the results of which were negative. In Mr du Toit’s report of 31 July 2009, it was his “clinical impression that now knowing that the facet joints were negative there was a discogenic cause for his back pain.” [4]
[4] PCB, pp. 31-32.
On 28 August 2009, Dr du Toit reported that the plaintiff’s main presenting complaint was a 12 month history of lower back pain. The plaintiff had told him that his lower back pain initially started around Easter 2008. He had “an acute exacerbation of the lower back pain” in November 2008 and again in January 2009 “associated with lifting from floor to waist.”[5]
[5] PCB, pp. 33-36.
In Dr du Toit’s clinical opinion, the plaintiff’s lower back pain was discogenic in nature. The most likely level was the L4-5 disc. The plaintiff was waiting to have lower lumbar discogram’s to confirm the L4-5 disc as the cause for his lower back pain.
Dr du Toit also reported that the plaintiff’s current activities of daily living were affected by his ongoing back pain. The pain was mostly bending or lifting at home or repetitive impact activities such as running. In his opinion, the plaintiff should not lift from floor to waist or push or pull to more than 10kg at this stage.
On 9 September 2009, Dr Bruce Mitchell performed a lumbar discography, the results of which were negative. [6] On 19 October 2009, Dr Mitchell reported that the discography also revealed that, while the plaintiff had tears on all three bottom discs, these were not painful. In his opinion, there was an approximately 95 diagnostic confidence that these were not the source of his pain. The plaintiff also had a negative medial branch block of his bottom two lumbar facets ruling these out with 95 per cent confidence. [7]
[6] PCB, p. 40.
[7] PCB, p. 43.
Dr Mitchell, then decided that they should look at the bilateral sacroiliac joint and deep interosseous ligament injections. If they were negative, then the best option for the plaintiff would be a structured rehabilitation program.
The injections took place on 26 November 2009. In his report of 12 January 2010, Dr du Toit revealed that the injections had given the plaintiff significant immediate relief from his lower back and buttock pain and that, for a two week period following the injections, the plaintiff had up to 95 per cent improvement in his lower back. However, unfortunately the pain relief did not last, and in January 2010, the plaintiff had the same back pain as before.[8] In the meanwhile, the plaintiff was also having physiotherapy and Pilates treatment with Erica Blewett at Integrated Health in Carrum Downs.
[8] PCB, p. 37.
In November 2010, because of financial difficulties caused by being unable to work due to his back injury, the plaintiff moved with his wife and three boys to Kingston in the state of South Australia, where they lived for 11 months. While he was in Kingston, the plaintiff attended the Kingston Medical Centre.
Dr Venkatesh Hamyanaik, from Kingston Medical Centre, reported that he saw the plaintiff on 23 November 2010 for extension of his WorkCover Medical Certificate, dated 30 November. He gave an extension of the PMC in support of the diagnosis of L4-5, L5-S1 disc bulge and ongoing back ache with restrictions of avoiding excessive bending, not to lift more than 10 kilograms, not to drive more than one hour without a break.[9]
[9] PCB, pp. 73-74.
Whilst in Kingston, the plaintiff had physiotherapy treatment for his back injury at the Good Country Physiotherapy Clinic. In her report, dated 30 May 2011, Ms Shannon McGrice confirmed that she had been his treating physiotherapist for chronic back pain since he first presented on 4 April 2011[10].
[10] PCB, pp. 75-76.
After 11 months in Kingston, the family moved to Victor Harbour. While in Victor Harbour, the plaintiff attended Northcote Medical Service. His GP there was Dr Jessica Van De Kamp who reported that she had only seen him twice and that she had referred him to Professor Ian Steven on 6 March 2012. The plaintiff also gave evidence that he had attended another practitioner about three or four times, but he could not remember his name.[11]
[11] Transcript, p. 17.
In his report, dated 17 May 2012, Professor Steven stated that:
“the diagnosis was chronic low back pain. It was expected that activity would cause an increase in his symptoms. He had no capacity for his pre-injury employment. His incapacity was permanent. The incapacity would continue for the foreseeable future. The prognosis was very guarded. It is expected that the chronic pain syndrome will remain, although it is also expected it will very gradually become less severe over time but the time required will be measured in years.”[12]
[12] PCB, pp. 86-87.
The plaintiff was also referred to Dr Santosh Poonoose, a rheumatologist at the Flinders Medical Centre. Dr Santosh Poonnoose only saw the plaintiff on one occasion and in his report, dated 8 May 2012, stated that he felt that the plaintiff “had chronic pain syndrome brought on by many years of physical labour and that he would benefit from seeing a chronic pain specialist.” [13] He referred the plaintiff to Dr Porhan Kang, a pain physician. However, the plaintiff gave evidence that he did not see Dr Kang. He had looked him up on the internet and, although he was in severe pain, he did not think Dr Kang would help.
[13] PCB, p. 81.
On 7 March 2012, Dr Brien Donnelly carried out a CT of the plaintiff’s lumbar spine which showed was mild osteoarthritic change in L3-4 facet joints with minimal osteoarthritic changes at L4-5.[14]
[14] PCB, p. 98.
On 3 April 2012, the plaintiff had a bone scan and CT of the lumbar spine which was essentially normal with no evidence of focal abnormal uptake in facet joints, disc spaces or elsewhere in the lumbar spine to account for his pain.[15]
[15] PCB, p. 99.
In July 2012, because of an increase in pain in his back, his doctor gave the plaintiff a cortisone injection. It helped for a while but then it wore off. He had further cortisone injections in February 2013 because of the severity of pain in his back. Again, it helped for a few months, but the positive effect of the injections then wore off.
On 10 July 2012, the plaintiff had a CT guided bilateral L3-4 injection. On 27 February 2013, the plaintiff had CT guided L3-4 and L4-5 facet joint injections which did not assist.
While living in Victor Harbor, the plaintiff also saw Dr Brian Lynch at Norfolk House. Dr Lynch saw Mr Carr on three occasions (9 July 2009, 10 August 2012 and 12 February 2013). In his report of 24 June 2013, he said, “It may be that work injury aggravated some pre-existing facet joint arthritis. L4-5 disc bulge minor.”[16]
[16] PCB, pp. 91-96.
On his last attendance, the plaintiff told him that his back was going very well but that he had occasional sharp pains especially with bending. Dr Lynch organised steroid I njections and physio. He encouraged an exercise program and suggested weight loss.
In Dr Lynch’s opinion, the plaintiff should be able to work full-time as long as he could find work for which he was qualified and it did not involve activity which was harmful to his spine. This included recreational activities and meant no fishing boating or waterskiing. From his limited contact with the plaintiff, he considered his prognosis to be quite good as long as he was careful about physical activity and did not subject his spine to undue strain. [17]
[17] PCB, p. 93.
The plaintiff now lives at Aldinga Beach. He is working as a casual employee in a warehouse that manufactures windows. In his second affidavit, the plaintiff described the duties of his present employment as not requiring any significant lifting or repetitive bending. The plaintiff puts together light aluminium frames with a drill and screw and silicone guns. The frames are normally above waist height when he puts them together. He has left work early from time to time due to back pain, and about one day per month on average he was not able to work due to an increase in back pain and “would need to rest his back up.”[18]
[18] PCB, pp. 25-26.
Prior to his injury, the plaintiff was an outdoors type of man. He attested in his affidavits that he used to go fishing regularly in his boat, which he has now sold. He would go surfing, skiing, snowboarding, water skiing and scuba diving. He has not done any of these activities since his back injury.
The plaintiff claims that he gets very down about his back pain and how it has affected his life. In particular, he gets down about not being able to do things with the boys as he would like to, such as wrestling or kicking a football because of his back.
The plaintiff continues to see his local doctor, Dr Lynch, every few months. He has been told there is nothing that can be done for him except medication and occasional cortisone injections. Presently he takes Panadol Osteo and Tramadol tablets, if he is suffering from severe back pain. In addition, he uses a Hi Dow machine which provides a small electric localised current on his back.
Medico-legal reports
The plaintiff relied on medico-legal reports from Dr Amanda Silcock, an occupational physician, and Dr David Brownbill, a consultant neurosurgeon.
There were two reports from Dr Amanda Silcock, dated 2 February 2010 and 1 February 2012. On 2 February 2010, Dr Silcock reported that the plaintiff continued to have pain in his lower back. He graded it as being 5-6/10 in intensity, depending on what he does and increasing to 8/10 when he bends too much. He told her that he did not have any pain free periods and it was made worst by sitting than bending and was relieved by lying down. In addition, that he could stand for 5-10 minutes and sit for only 5-10 minutes.
Dr Silcock diagnosed the plaintiff’s injury as being an annular tear of his L5-S1 disc with no neural compressions. She stated that:
“If he did not have the injury, he would have been able to continue in employment into the foreseeable future. His restrictions, disability, incapacity derive solely from the physical organic injury. He was unfit for his pre-injury employment. He could do work that did not require lifting in excess of 5 kilos and did not need prolonged sitting. He would continue to suffer the consequences of the physical injury into the foreseeable future.”[19]
[19] PCB, pp. 53-54.
However, in her report of 1 February 2012, after viewing video material from 19 and 23 February 2010 and 8 and 9 December 2010 Dr Sillcock’s opinion as to the plaintiffs level of incapacity changed. She stated that the video material:
“showed Mr Carr moving easily He walks, bends and twists and hooks his boat up to the car in the video. He told me he could not do this sort of activity and he presented as being much more disabled than he was in the video. This activity is inconsistent with the history he gave me at the examination.”[20]
[20] PCB, p. 57.
While Dr Sillcock had originally assessed the plaintiff as having a limited work capacity, she believed after seeing the video that he could work full time in suitable employment. She also believed that as he was “somewhat less incapacitated than previously thought” and that he had a capacity for more strenuous work. However, she was also of the opinion that as the plaintiff had an annular tear of a lumbar disc, it would be advisable to avoid any heavy lifting and she recommended a lifting restriction of 10 kilograms.[21]
[21] PCB, p. 58.
In particular, the plaintiff relies on the reports of Dr Brownbill, as after seeing the same video footage as Dr Silcock, his opinion of the plaintiff’s incapacity remained the same. In his report of 16 December 2010, Dr Brownbill’s diagnosis was:
“Radiological investigation has demonstrated two level lumbar intervertebral disc derangement with protrusion at both levels, more so at L4-5 and with an annular tear at L5-S1. This man may have longstanding lumbar disc degenerative changes which have been asymptomatic.
He will in the future need to avoid activities involving lifting, twisting or bending or prolonged standing or sitting. The pain will continue in a fluctuating manner indefinitely. He cannot return to his pre-injury work.”[22]
[22] PCB, pp. 62-63.
Dr Brownbill also reported that, as a result of his pain, the plaintiff’s ability to perform household tasks was reduced and his recreational activities had been reduced greatly. He considered that the plaintiff would continue to suffer the consequences and incapacities of the physical injury of lumbar intervertebral disc derangement into the foreseeable future.[23]
[23] PCB, p. 62.
In the report of 12 May 2011, after seeing the videos, Dr Brownbill stated that:
z“I consider the activities demonstrated on the provided DVD’s as being consistent with the radiological investigations and with the history and examination of 14 December 2010.There is no indication to modify the opinions I have previously expressed in that he will need in the future to avoid activities involving lifting, twisting or bending or prolonged standing or sitting. He could attempt employment that avoided those activities but a return to work should be conducted in a graded fashion and under medical supervision.”[24]
[24] PCB65-66
The defendant relied on three medico-legal reports from Mr Daryl Nye, dated 10 February 2011 and 6 June 2012; three reports from Dr Geoffrey Graham, dated 6 January 2011, 10 March 2011 and 23 May 2012; and a report from Mr Peter Battlay, dated 20 May 2012.
In his first report, Mr Nye’s diagnosis was “symptomatic two level lumbar disc degeneration.” The plaintiff’s work-related activity had resulted in the condition and he could not resume his pre-injury duties.
The plaintiff was not incapacitated for all employment, but:
“His employment situation would require restrictions, particularly the absence for repeated bending or twisting of the spine, prolonged unrelieved periods of either standing or sitting and a lifting limit of 5 kilos. It would be appropriate such should not be conducted from below waist level.”[25]
[25] Defendant’s court book (“DCB”), p. 5.
On 6 June 2012, Mr Nye reported that he had observed the video material of 19 February 2010, 8 December 2010, 8 March 2011 and 20 March 2011. He said:
“The material obtained indicates on numerous occasions the plaintiff engaged in physical activities with normal walking, repeated bending of the spine, pushing a trailer, engaging in motor vehicle driving, pushing a trolley in a supermarket, engaging in car washing, pushing a trailer and other activities without any obvious physical impairment. These observations were not consistent with the presentation at the time of my assessment at which time the plaintiff claimed levels of back pain to be 6 out of 10 on an analogue scale and the examination findings of limited spinal movement as recorded.”[26]
[26] DCB, pp. 8-9.
However, he also said that :
“Notwithstanding the available information there is evidence on MRI scan of two level disc degeneration in the lumbar spine. However clearly this is not associated with major physical incapacity.[27]”
[27] DCB, p. 9.
Accordingly, he considered that the restrictions in his earlier report would be appropriate and that the only alteration to the previous opinion expressed related to the plaintiff’s capacity for engagement in motor driving.
Dr Graham reported, with respect to the plaintiff’s diagnosis and nature of the injury, that the diagnosis was unclear. The plaintiff appeared to have a mechanical problem in his lower back although an abnormal pain state could not be excluded. There was no evidence to suggest that he had a problem relating to a lumbar disc nor was there any neural or dural involvement. There was no evidence on clinical examination of any problem relating to his sacroiliac.
Based on the symptoms described by the plaintiff, including:
· back pain 3 times as severe as it had been for 12 months previously;
· central low back pain with a feeling as if he had been struck in his back and had a large bruise;
· pain in both legs but generally the left; and
· could not stand or sit for more than 10 minutes.
In addition to the plaintiff’s presentation at the time of the consultation (5 January 2011), Dr Graham considered the plaintiff incapacitated for employment as a result of his compensable injury.[28]
[28] DCB, p. 15.
On 10 March 2013, Dr Graham reported that he had viewed the surveillance film of 8 December 2010 and 9 December 2010. He believed that the surveillance film supported his opinion in his first report, that the plaintiff did not have a problem relating to his lumbar disc, to neural or dural structures or to sacroiliac joints. In addition, that the film suggested that the plaintiff had no significant problems relating to his low back and did not support his suggestion that he was suffering from abnormal pain syndrome as at no stage in film did the plaintiff appear to be experiencing pain.
The film caused him to alter his opinion in his first report, as follows:
· There was no evidence that the plaintiff had any loss of function of his low back and lumbar spine.
· On a purely physical basis, the plaintiff’s prognosis was excellent and he would not suggest that there was any need for further treatment.
· On the basis of the activities noted in the surveillance video the plaintiff was not incapacitated for employment.[29]
[29] DCB, pp, 16-17.
In his report dated 23 May 2010, Dr Graham referred to viewing further surveillance film including 8 and 9 November 2011. This was a video of approximately 39 minutes. It showed the plaintiff at a carwash for more than 15 minutes during which time Dr Graham considered that he moved freely including reaching up to wash the roof of Nissan Patrol vehicle and bending down to clean under the wheel arches and squatting to clean under the vehicle it also showed him at a petrol station and at a supermarket moving freely.
Surveillance film, dated 20 March 2011, continued for approximately 30 minutes and showed the plaintiff repeatedly squatting and bending to clean under the front of a Nissan Patrol vehicle with a high pressure hose, squatting and bending to clean under wheel arches and under the side of the vehicle, and later cleaning a boat. At no stage did he show any apparent discomfort or difficulty with these movements.
This subsequent surveillance film confirmed Dr Graham’s opinion that the plaintiff was not suffering from an abnormal pain state and at that time had no significant problem relating to his low back.[30]
[30] DCB, p. 18.
In his report of 20 May 2010, Mr Peter Battlay was of the opinion that the plaintiff had “discogenic mechanical low back pain without radiculopathy”…”most probably flowing from the lowest two lumbar discs. He had an accepted claim for work cover for his back injury and there was a stabilised, permanent impairment of the back with the relevant injury date of 24/11/2008”.[31]
[31] DCB, p. 21.
Finding in relation to the injury suffered in course of employment
I am satisfied that during the course of his employment with the defendant between February 2007 and 24 November 2008, the plaintiff suffered an organic injury to his back.
The radiological evidence reveals that the plaintiff has 2 level lumbar intervertebral disc derangement with protrusion at both L4-5 and L5-S1 where there was also an annular disc tear.
While the various investigations carried out over the years have failed to find the exact cause of his back pain, prior to November 2008 the plaintiff did not have a problem with his back. In his affidavit, the plaintiff described doing work activities of a physically demanding nature between February 2007 and November 2008. He experienced back pain which became bad in November 2008.
On the balance of probabilities, I accept that the work the plaintiff carried out significantly contributed to the disc protrusions and tear shown in the radiological investigations. This finding is supported by Dr Brownbill’s reports and those of Dr Naidoo.
It is also not inconsistent with Mr Battlay’s opinion that Mr Carr has mechanical lower back pain most probably flowing from the lowest two lumbar discs. Mr Nye’s opinion that, during the course of employment, the plaintiff developed 2 level disc degeneration unaccompanied by radiculopathy, and Dr Amanda Sillcock’s opinion that the injury he received in the course of his employment with the defendant was the annular tear of the L5-S1 discs with no neural compressions.
The real issue in this case is with respect to the claimed consequences of the impairment.
Consequences of the injury
i) Medication
In Haden Engineering v McKinnon[2010 ]VSCA at paragraph 11, President Maxwell set out guidelines regarding the evidentiary basis of pain assessment . It is not only what the plaintiff says about pain, it is what he does about pain in terms of taking medication and resting, and it is what the doctors say about the extent and intensity of pain and, finally, what the objective evidence shows about the disabling effect of pain.
The case put for the plaintiff was that he still suffers from significant back pain and that although he takes less medication than he did originally he still needs to take medication. While he does not take Tramadol very often he is reluctant to do so due to adverse side effects.
The defence case however is that the plaintiff takes little medication and what the plaintiff sais and does about pain does not bear out a significant or serious injury.
Turning to the plaintiff’s evidence regarding his pain and medication, in his first affidavit back in 2010 the plaintiff claimed that he had constant low back pain and that he was currently on the painkillers Tramadol ,Endep and Panadeine Forte. He also claimed that he needed to take painkillers every day.
While I accept that this was true then, it was apparent from the plaintiffs cross-examination that this is not the current situation. The plaintiff’s evidence was that the medication he was still taking was Panadol Osteo, Tramadol tablets and a muscle relaxant, Baclofen. With Panadol Osteo he would take possibly 4-6 tablets a day when needed. However, he did not need to take them every day.[32]
[32] Transcript, p. 14.
As the plaintiff had suffered reactions to Tramadol he did not really like taking it. He saved for it for when the pain got a lot worse. He agreed that the script he had for Tramadol was the same script as a year ago.[33]
[33] Transcript, p. 15.
With respect to Baclofen he only used it when he was in severe pain and he might take a couple of tablets every few months. His present packet had lasted him from some time in 2011.[34]
[34] Transcript, p. 16.
The plaintiff also agreed with defence counsel that it was fair to say that there would often be days when he was not taking any of these medications. [35]
[35] Transcript, p. 16.
ii) GP attendances
The defence case is that since the move to Victor Harbour in October 2011 the plaintiff has not needed to attend his general practitioner on a regular basis for either medication or treatment for his back.
The evidence relied on was that the plaintiff moved to Victor Harbour in October 2011. Since then he had seen Dr Vandekamp on 2 occasions. Dr Lynch 3 times between August 2012 and currently. In addition another GP three or four times.
iii) Rehabilitation
With respect to his rehabilitation, the plaintiff gave evidence that he used a Hi Dow machine, on average, about every two weeks. Sometimes it could be every three weeks and he might use it for one to three hours a day.[36]
[36] Transcript, p. 5.
The plaintiff agreed in cross-examination that he was having no physiotherapy and had no gym membership. However, the plaintiff gave evidence that he was not a member of a gym at the moment as he could not afford it and his insurance would not pay.
iv) Pain specialist
It was also submitted for the defendant that it was open for the court to find that if the plaintiffs pain was at such a level, he would have taken up the recommendation to see Dr Kang .
v) Sleep
In his first affidavit, the plaintiff claims that he has interrupted sleep, especially if he has worked a full day. He gets an increase in back pain and stiffness and this causes him to toss and turn, and he sleeps poorly. The plaintiff reported his difficulty in sleeping to Dr Nadoo[37] and to Dr Sillcock.[38]
[37] PCB, p. 46.
[38] PCB, p. 51.
vi) Recreational pursuits
Moving onto how the injury has affected the plaintiff’s recreational pursuits, the case for the plaintiff was that due to his back injury he could no longer do a number of activities, including boating, fishing, skiing, scuba diving, surfing and water skiing.
The case for the defendant was, in essence, that the extent of these pre-injury activities was not nearly as significant as had been suggested in the plaintiff’s affidavits. In addition, that on closer inspection it was apparent that the plaintiff had also ceased doing these activities for financial reasons and the fact that he had had three young children since 2006 and they were not particularly family friendly activities.
Boating
The plaintiff’s evidence was when he was living at Carrum Downs he owned two boats. One was kept at his house and another one at a friend’s house. They were part owners of that boat. The boat at his house was in a fairly derelict state and he was doing it up. The boat he went out on was the one that was at his friend’s place.
In his first affidavit the plaintiff deposed to being very active in fishing and boating prior to his injury. In this respect he relied on supporting affidavits from Philip Will and Roger Glen.[39] .Both these gentlemen supported the plaintiff’s claim as to his level of activity with boating and fishing prior to the accident when he was living in Victoria . It was submitted for the defendant however that they were not able to support the plaintiff’s assertion that at present or in recent times he could not do as much boating as he had previously.
[39] PCB, pp. 19-24.
When the plaintiff was cross examined as to how frequently he went out on the boat in 2008, his evidence was that it was “quite a lot.” Whenever it was a nice day they would go, but not when it was too rough or too cold. More frequently in the summer and not particularly frequently in the winter.”[40]
[40] Transcript, p. 27.
The plaintiff agreed that he had gone out on the boat after the accident (in Melbourne) but claimed that it was only about twice. This was because with the Melbourne weather it gets a little choppy and he was quite sore with the bouncing and thought I cant do this.[41]
[41] Transcript, p. 29.
However, defence counsel relied on video footage from December 2010 of the plaintiff going into a tackle shop and the plaintiff’s evidence in cross examination that he may have been enquiring about fishing conditions, to submit that he had been going out in the boat in Melbourne far more than he was willing to admit in the witness box.
The plaintiff also agreed that approximately a year and a half after he had hurt his back, he had bought out his friend’s share of the boat for $9,000. The plaintiff said that he had always loved the water and he had hoped that his back would get better at some stage.
When they moved to South Australia, the plaintiff sold the boat he had kept at his home at his home but kept this boat. When he was cross-examined about this, he agreed that the water was calmer in South Australia and that he had gone out on the boat in Kingston.[42]
[42] Transcript, p. 30.
The plaintiff sold the boat when he moved to Victor Harbour. He expressed his reasons for selling it as being that he was not using it as much as he would liked to, and it was a lot of money sitting there.[43]
[43] Transcript, p. 33.
Surfing
The plaintiff agreed in cross -examination that he was not a member of any surf club. In addition that it was fair to say in the years leading up to 2009, that “he was not doing an awful lot of surfing”.[44] While he had enjoyed surfing and missed it he agreed that there was “no significant impact on his life ,the inability to surf or the fact he thought he can’t t surf.[45]
[44] Transcript, pp. 38-40.
[45] Transcript, p. 40.
Skiing
While in his affidavit, the plaintiff claimed that he was active in skiing when he was cross-examined it emerged that he was a snowboarder, not a skier, and that the snowboarding amounted to trips to Mount Baw Baw with the family two or three times a year.[46]
[46] Transcript, pp. 33-35.
Scuba diving
In his affidavit, the plaintiff claimed that he could no longer scuba dive. His evidence was that he had tried scuba diving once since the injury to his back. This was in late November 2008 when he was living in Kingston, South Australia. However, the equipment was too heavy and he could not deal with the pain.[47]
[47] Transcript, p. 35.
Prior to the injury to his back, the main period of his life when he went scuba diving appears to have been with his school friend, Christian Frederick, after they first attained their licence back in the 1984.
The plaintiff thought that in 2006 he had been at least a couple of times a year. However, he agreed that after his first child was born in 2006, it became more difficult to do these sorts of activities.[48]
Water skiing
[48] Transcript, p. 37.
With respect to water skiing the plaintiffs evidence was that he used to go with friends to Lake Entrance. After the birth of his first son it become sporadic and he tried to spend more time at doing child friendly activities. The plaintiff agreed that he had not been specifically told not to water ski .He had not tried it as he did not want to aggravate his back.[49]
[49] Transcript, p. 70.
vii) Weight gain
In his first affidavit another consequence of the plaintiffs back injury is said to be weight gain.
viii) Inability to play with his children
It was submitted for the plaintiff that a particularly serious consequence of his back injury was an inability to play freely with his children.
ix)Work capacity
The plaintiff’s case is that due to his back injury he can no longer do his pre-injury work and that this is a significant consequence of his injury. In addition that, although he has returned to work, there are medical restrictions. With respect to this issue in his closing address counsel for the plaintiff relied in particular on the opinions of Dr Poonnose’ and Professor Stevens .In addition on Dr Nye’s opinion despite seeing the video footage, that the restrictions indicated in his earlier report would be appropriate.[50]
[50] DCB, p. 9.
The defendant relies on the case of Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181, in submitting that “not only has the plaintiff returned to work, but he has returned to fairly physical work that is closely in line with the sort of work he was doing pre-injury. In particular, in her closing address, counsel for the defendant relied on the plaintiff’s evidence about the requirement that he bend at waist height to put the parts of the frames together. In addition, on his evidence that he worked full-time and sometimes overtime”.[51]
[51] Transcript, pp. 9-10.
However, I note that the plaintiff also gave evidence that if he had to bend down very low he was allowed to sit on the floor and that there were chairs available to sit on so you’re not hurting your back.[52]
[52] Transcript, p. 10.
The defendant also relied on the plaintiff’s evidence that after the back injury. He had worked as a labourer for an electrical contractor and that this job had also involved some truck driving. In addition, on his evidence that he was helping to look after the children in 2009 when his wife was working 20 hours per week.
With respect to the electrical contractor work, the plaintiff gave evidence that he was helping to lay the conduits in and setting up the pits. He had told his boss about his back and he did not have to do any heavy work.[53]
[53] Transcript, p. 11.
The video surveillance
The defendant also relied on the video footage of the plaintiff which fitted into three time frames – early 2010, late 2010 and mid 2011.[54] It was submitted for the defendant that the plaintiff’s subjective reports of pain to the court and to various doctors was not credible when compared with what was seen of him on the video film at contemporaneous times. The description of incapacity given to various doctors was submitted to be far greater than what was actually seen in the surveillance film.
i) Early 2010 footage
[54] 10 March 2010, 21 December 2010, 16 March 2011 and 16 May 2011.
With respect to the early 2010 footage, the defendant relied on what the plaintiff had told Mr Battlay; in May 2010, that he was in continuous pain at L4-5 and continuous pain down his lower back aggravated by bending and lifting[55]. It was submitted that this was in contrast with what was seen in the February 2010 film where the plaintiff went to the Woolworths shopping centre, lifted the toddler out of the car, bent when he did his shopping and pushed the trolley with three children sitting in it. In addition that the plaintiff had agreed when cross-examined about this footage that were no signs of discomfort on the film.[56]
ii) Late 2010 footage
[55] DCB, p. 20.
[56] Transcript, p. 58.
With respect to the late 2010 footage the defendant relied on the plaintiff’s affidavit of October 2010. In this affidavit, the plaintiff had said that he had difficulty sitting or standing in one position for extended periods and that he had constant lower back pain at the time. He also said that most activities, including bending and lifting, aggravated the back pain.
The plaintiff had agreed when cross-examined that he tried to avoid bending and lifting, where possible.[57] He agreed that he had told Dr Sillcock in September 2010 [58]that he had to sit to put his shoes and socks on. He had told Dr Brownbill in December 2010 that his back pain was aggravated by bending and lifting[59].
[57] Transcript, p. 42.
[58] See PCB, p. 51.
[59] DCB, p. 20.
It was submitted for the defendant that the footage from late 2010 showed a different picture to what the plaintiff had put in his affidavit and what he had told the doctors. It showed the plaintiff bending down, squatting and bending at the same time to attach a trailer to the car. He had pushed the trailer with his three children inside it. Although the plaintiff gave evidence it was a very light trailer to push, the youngest child weighed 8 kilograms and there were three of them in the trailer, equalling 30 kilograms.
In particular, defence counsel relied on what she said was a “significant bend” when the plaintiff bent down to spray the trailer with RP7. In addition, on the video footage of the plaintiff at the beach with his children where he showed no signs of discomfort and footage of him driving his car with no signs of discomfort.
ii) March 2011 footage
The third time frame in March 2011, was submitted for the defendant to be the most impressive in terms of showing the contrast between what the plaintiff claimed he could not do compared to what he was seen doing.
The plaintiff had agreed when cross-examined that he had told the various doctors, in 2010/2011, that the real difficulty for him was standing for long periods, bending, lifting things from ground level and bending down to ground level. He also said that he tried to avoid this unless absolutely necessary.[60]
[60] Transcript, pp. 63-64.
This was submitted to be in stark contrast to the video footage which showed him cleaning a car with bending which was prolonged and repeated and often down to ground level. These bends were also submitted to be primarily bends where the plaintiff used his back or waist to bend rather than his legs. In particular, on 8 March 2011, there was a 23 second bend, which was submitted to be a fairly significant bend for a man who gave evidence he was trying to avoid bending and that it gave him a lot of pain.
It was submitted further that when cross-examined about this footage the plaintiff had agreed there was an inconsistency between what he had told the doctors and what was seen on the film. He had made no attempt to explain how the inconsistency arose.[61]
[61] Transcript, p. 64.
In addition, it was submitted that there were no significant signs of discomfort either that day or the day after. There was no suggestion, as in some cases, that the plaintiff did a lot of activity on one day and the next day he paid for it. In fact, he was seen in the footage walking around on 9 March with no signs of discomfort.
In his closing address, counsel for the plaintiff queried as to how “one displays discomfort on a film.” While it was conceded that the plaintiff could move, it was submitted to be “relatively slowly and steadily.” The footage never showed him moving in a jolting manner or at pace or speed.
It was submitted further that, on one view, the video footage did not show constant and repetitive bending, twisting and things of that nature. The things the plaintiff was undertaking were fairly mundane activities of life – shopping, hosing the car, and hooking up a trailer. These activities were not outside the activities required of the plaintiff in his job. The film was consistent with what he said his capabilities were, in a general sense, to undertake his current job.
Finding
I accept that due to his back injury the plaintiff cannot do his pre-injury work and that this is a significant consequence for him. However, there is no evidence that the plaintiff has suffered financially due to his inability to do heavier work. In addition, despite the restrictions placed on him by a number of the medical experts as to lifting and twisting and bending the plaintiff appears to be copying pretty well with his current full-time job.
With respect to his pain, while I accept that the plaintiff continues to suffer from episodes of back pain, I find that it is not on a regular basis. This finding is based on the evidence as to the relatively modest amount of medication he now takes and the lack of frequency of his visits to the GP. In addition, I accept the submission for the defendant that if the plaintiff’s pain was strong and frequent, he would probably have followed through with the referral to Mr Kang or another pain management specialist.
As to the effect of the plaintiff’s back injury on his recreational activities, I accept the case for the defendant, other than with respect to boating and fishing, that these activities were not as frequently undertaken as might have been suggested by the plaintiff’s affidavit. In fact, the plaintiff freely admitted that having children had played a part in him ceasing to be actively involved in activities such as water skiing.
With respect to the snow boarding and surfing, they were clearly not significant regular recreational pursuits prior to the plaintiff receiving his injury. While he appears to have gone scuba more often, it was not with any frequency. Nevertheless, I accept that the plaintiff no longer has the physical capacity to carry out these activities due to his injury.
With respect to boating and fishing, while I accept that they were a fairly regular recreational activity prior to the plaintiff’s injury and that the plaintiff enjoyed them, I find that the plaintiff’s reasons for selling the boat were both because of his back pain in choppy water and financial.
I accept that the video footage showed the plaintiff performing a significant range of activities including a lot of bending. In addition, I accept that there was a significant contrast between what he had told the doctors about his limitations and what he actually could do. While Mr Brownbill did not see any discrepancy between his investigation and the film, he did not have the 2011 film which showed the plaintiff bending with no sign of discomfort or pain while washing his car.
While I did not find the plaintiff to be other than a frank and honest witness, in order to succeed, he must establish that the consequences of the impairment of his back when judged by comparison with other cases in the range of possible impairments or losses of body function may be described as are at least very considerable and more than significant or marked. Taking into account all the evidence in this case, I am not satisfied that the plaintiff’s injury amounts to being a serious injury.
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