Carson v Victorian WorkCover Authority
[2014] VCC 404
•11 April 2014
| IN THE COUNTY COURT OF VICTORIA AT WARRNAMBOOL CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-13-01150
| DAVID JOHN CARSON | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE CARMODY | |
WHERE HELD: | Warrnambool | |
DATE OF HEARING: | 1, 2 and 3 April 2014 | |
DATE OF JUDGMENT: | 11 April 2014 | |
CASE MAY BE CITED AS: | Carson v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 404 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to the low back – pain and suffering damages only – multi cause for consequences – range case – credit of the plaintiff – aggravation of pre-existing condition
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b)
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr N R Bird with Mr I R Fehring | Stringer Clark |
| For the Defendant | Mr P D Elliott QC with Mr J L Batten | Lander & Rogers |
HIS HONOUR:
1 Before the Court is an application brought by Originating Motion filed on 13 March 2013 for which the plaintiff applies for leave pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) to bring proceedings to recover damages for injuries suffered by him arising out of or in the course of his employment with the defendant. The plaintiff alleges that the injury to his lower back occurred between 2000 and the date of his retirement in July of 2010. In particular, the plaintiff alleges that he injured his lower back on 30 October 2008. The body function which the plaintiff says has been lost or impaired is his lower back.
2 The plaintiff seeks leave to bring proceedings for pain and suffering damages only.
3 The following evidence was adduced or tendered during the hearing:
·The plaintiff gave evidence and was cross-examined.
·The plaintiff tendered the following documents:
§Exhibit A – Plaintiff’s Court Book (“PCB”) pages 7-26 and 32-59.
·The defendant tendered the following documents:
§Exhibit 1 – Defendant’s Court Book (“DCB”) pages 1-116.
§Exhibit 2 – DVD surveillance films of the plaintiff on 12 January 2013, 14 January 2013, 9 April 2013 and 4 December 2013.
§Exhibit 3 – complete record of the Otway Medical Clinic general practitioner’s notes from 28 June 2001 to the present time.
§Exhibit 4 – bundle of Barwon Health medical records in respect of the plaintiff.
4 Mr Elliot QC, on behalf of the defendant, identified the issues in this application as:
(i) The consequences the plaintiff complains of in this application have multiple causes;
(ii) The plaintiff does not satisfy the statutory test. This was a range case;
(iii) The credit of the plaintiff;
(iv) The plaintiff has had previous back complaints and this application has to determine the level of aggravation caused by the incident on 30 October 2008.
The statutory scheme
5 The application is brought under the definition of “serious injury” contained in ss(37)(a) of s134AB of the Act which requires the plaintiff to prove that he has suffered a “permanent serious impairment or loss of a 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 the course of his employment on or after 20 October 1999.[1]
[1]Section 134AB(1) of the Act, and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at paragraph 11
(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]
[2]Barwon Spinners (supra) at paragraph 33
(c) The plaintiff bears the burden of proof to be determined upon the balance of probabilities.
(d) Sub-section (38)(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 fairly be described as being more than “significant” or “marked”, and as being at least “very considerable”.
(e) Sub-section (38)(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) In conformity with Barwon Spinners, 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 sub-section (38). I have applied the principles set forth therein in reaching my conclusions in this application.
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 1945. He is now sixty-eight years old. The plaintiff was raised and educated in Colac and attended school to Year 7.[3]
[3]PCB 7
9 The plaintiff has been married on two occasions.[4] From the first marriage, he has four sons, who are all adult and live independently of himself.[5]
[4]Transcript (“T”) 112
[5]PCB 7
10 The plaintiff has worked in carpentry and maintenance carpentry work for most of his working life. He spent the last twenty-five years of his working life with the defendant. He ceased employment with the defendant in July of 2010.[6]
[6]PCB 10
11 The plaintiff conceded that he may have made twenty-three claims for compensation in his period of employment with the defendant from 1989 until 2009. In his evidence the plaintiff could not remember exactly how many claims he had made.
12 The plaintiff agreed that he had had problems with his back going back to 1993. The plaintiff had made a number of claims for back injury in the course of his employment in September 1998,[7] February 2004[8] and October 2004.[9] In summary, the plaintiff agreed he had had problems with his back for many years prior to the period of 2000 to July 2010.
[7]DCB 31
[8]DCB 33
[9]DCB 36
13 The plaintiff had previously brought a serious injury application in respect of a right knee and left shoulder injury. In February 2003, he was granted leave to bring proceedings for pain and suffering damages in respect of the injury to his right knee. The plaintiff’s application in respect of left shoulder was refused.[10]
[10]DCB 16
14 In the proceeding for his serious injury certificate for his right knee, the plaintiff conceded he had previously expressed a desire to retire at the age of sixty-five. In his evidence before me, the plaintiff stated that he would have continued working past the age of sixty-five but for his alleged back injury.
15 The plaintiff has also had left hip injuries. The original hip injury resulted in a hip replacement. The initial total hip replacement was performed in 1999. The hip revision surgery was conducted by Mr Patrikios in 2003. The plaintiff has subsequently been referred to Mr John Skelley at Barwon Health for further treatment in relation to his hip. He attended Mr Skelley at Barwon Health on 4 July 2011, 23 January 2012, 23 July 2012 and 20 August 2012.[11] It was noted in the last attendance that the CT scan showed the hip joint repair was loosening. It is anticipated that the plaintiff will require subsequent revision of his left hip injury.
[11]Exhibit 4
16 On 16 September 2013, the plaintiff returned to Mr Skelley complaining of mild pain in his left hip joint and low-back pain. On that occasion, the x‑rays were noted by Mr Skelley as showing a continued loosening and worsening of the left hip joint. The plaintiff returned to Mr Skelley on 28 October 2013 with further complaints of left hip pain. On that occasion, the plaintiff stated that he did not want to have a further operation on his left hip.[12] The plaintiff, in his evidence, confirmed this position. The plaintiff has been prescribed ongoing pain medication for his hip complaints.[13]
[12]Exhibit 4
[13]Exhibit 3
17 In summary, the plaintiff has injuries to his left shoulder, right knee and left hip for which he has been receiving treatment over a long period of time up until the present time.
Injury with the Defendant
18 The plaintiff worked for the defendant as a maintenance carpenter for twenty-five years. He retired in July of 2010. The plaintiff complains that during the course of his work, from approximately 2000 onwards, he was required to perform very heavy work. In particular, he gave evidence about doing concrete work, which was described as often “back breaking”. The plaintiff stated that he had supervisors who knew that he was suffering from back pain regardless of his continued duties. I note in his evidence that the plaintiff conceded that he thought that the employer was looking after him during the course of his work.
19 In particular, the plaintiff complained of an injury on 30 October 2008. He described it as follows:
“12.On the 30th October 2008 I was climbing up and down a ladder passing roof battens up to another carpenter. We were building a new test room for the defendant. On this particular day I had been climbing up and down the ladder for about 3 or 4 hours. Whilst I was doing this I noticed an ache in my back. It was the sort of pain that I had been living with over the past four or five years and I continued working.
13.On one occasion however I went to step off the bottom of the ladder and I stood on a block of wood that had obviously been left there by one of the other carpenters. It was an off cut that had been sawn off the framework.
14.As I stepped on this off-cut I felt a severe pain in my low back. It was worse any pain I had felt in the low back in the past. I knew immediately that I had done some damage.
15.I reported the incident to my supervisor.”[14]
[14]PCB 9
20 The plaintiff completed a Claim Form dated 3 November 2008.[15] On that same day, the plaintiff attended his general practitioner for the first treatment in respect of his low-back injury.[16]
[15]PCB 27
[16]Exhibit 3
21 The defendant concedes that it has paid compensation in respect of the claim for the back injury arising from the incident on 30 October 2008.
Medical treatment
22 In the period from 28 June 2001 until the accident on 30 October 2008, the plaintiff had attended upon his general practitioners at the Otway Medical Clinic on three separate occasions for treatment to back complaints: 28 June 2001, 30 August 2005 and 20 June 2006.[17] These three consultations are the extent of the plaintiff’s treatment in respect of low-back injury between June 2001 and October of 2008.[18] In that same period, the plaintiff had had numerous visits to his general practitioner for other medical complaints not involving his low back.
[17]Exhibit 3
[18]Exhibit 3
23 Since the accident on 30 October 2008, the plaintiff has had twenty-six visits to his general practitioner for the purposes of treatment of his low-back complaints. That period includes up to 21 January 2014.[19] The treatment that the plaintiff has received has been the prescription of medications of Panadeine Forte, Targin, Mobic and Panadol Osteo. An analysis of the plaintiff’s attendances upon his general practitioner for low-back pain indicates that there was a ten-month period between 16 February 2009 and 14 December 2009 where the plaintiff did not attend for back-related complaints. In this period, the plaintiff attended upon his general practitioner on twenty separate occasions, predominantly to do with his wrist injuries. At that time, he was treated for carpal tunnel syndrome in respect of both hands.[20]
[19]Exhibit 3
[20]Exhibit 3
24 In the period between 30 April 2010 and 8 March 2011, the plaintiff did not attend his general practitioner for low-back injury complaints. In this period, the plaintiff attended his doctor on nine separate occasions for the right elbow injury complaints. On 31 January 2011, the plaintiff was seen by his general practitioner and placed on a management plan for the pain to his right elbow joint. The plaintiff, in his evidence, could not recall being placed on a general practitioner’s pain management plan for his right elbow.[21]
[21]Exhibit 3, T 76
25 In the period from March 2011 until the present time, the plaintiff has had twenty-nine visits to his general practitioner for medical conditions not related to his back. Significantly, on 16 January 2013, the plaintiff was placed on a general practitioner’s management plan for pain in his lower back. The second pain management plan covered the low back pain and the ongoing right elbow pain.[22]
[22]Exhibit 3
26 The plaintiff has not been referred by any of his general practitioners to any specialist orthopaedic surgeon or other medical specialist for treatment for his back.
27 In September of 2005, Dr Buckley, general practitioner, referred the plaintiff for x‑ray to his lumbosacral spine. The conclusion from that report was that the plaintiff suffered from mild L3-5 and L5-S1 disc degeneration.[23]
[23]PCB 58
28 On 24 November 2008, the plaintiff was referred for a CT scan of the lumbosacral spine by Dr Pojani. On that occasion, the CT scan report concluded:
“There is a mild to moderate degenerative L3-4 spinal canal stenosis with a mild L4-5 degenerative spinal canal stenosis also present.”[24]
[24]PCB 59
29 Given these radiological findings in respect of the plaintiff’s condition subsequent to his alleged injuries, it is not surprising that his general practitioners have not referred him to any specialist orthopaedic surgeons or other specialists for further treatment. The general practitioners’ treatment has been management of a degenerative condition to the plaintiff’s lower back. The plaintiff is treated by way of pain-relief medication, which covers all of his complaints relating to his shoulder, elbow, knee, hip and back.
30 The plaintiff has also received treatment from Dr Joel Grist, chiropractor. Mr Grist prepared a report dated 8 September 2010. In that report, Mr Grist was seeking approval for a “maintenance approach” to treatment of the plaintiff by way of chiropractic treatment. Mr Grist’s report is out of date and of little assistance to me in the determination of this application.[25]
[25]PCB 32-33
Medical opinions
Dr Noor Zannat
31 Dr Zannat prepared two reports dated 27 May 2010 and 10 November 2010. Dr Zannat noted that prior to the injury date, being 30 October 2008, the plaintiff suffered from chronic low-back pain aggravated by bending. In November 2008 he diagnosed the plaintiff with osteoarthritis and central canal stenosis of his lumbar spine. Dr Zannat last saw the plaintiff on 27 May 2010. In his report dated 10 November 2010, he said:
“It is reasonable to make the comment that we would expect that he has some degree of degenerative skeletal changes due to his age and his many years of manual work. It is also of note that he had a total left side hip joint arthroplasty in 1998 and a revision of this surgery in 2003.”[26]
[26]PCB 39
32 As Dr Zannat has not seen the plaintiff for some four years, his reporting does not assist me with determining the current state of the plaintiff’s low-back injury.
Dr Sharon Suguilon, General Practitioner
33 Dr Suguilon prepared a report dated 11 March 2014. In her report, Dr Suguilon noted that the plaintiff had suffered chronic low-back pain which had been aggravated by bending. The plaintiff had been diagnosed with mild disc degeneration in September 2005 and, by November 2008, he was found to have to moderate degenerative L4 and L5 spinal canal stenosis and L4-5 stenosis as well. Dr Suguilon noted that this had been confirmed by x‑ray and CT scan.
34 Dr Suguilon reported that the plaintiff had, over the decades of employment, been involved in heavy work and his progress notes reflected references to back pain from December 1996 (pinched nerve in back) to the present. Dr Suguilon noted the left joint replacement surgery and the revision performed later in 2003. Dr Suguilon confirmed that the plaintiff had numerous WorkCover injuries (shoulders, elbows, knees and back) over the years.[27]
[27]PCB 40a
35 A fair summary of Dr Suguilon’s report is that the plaintiff has been referred to a pain management clinic for treatment to all of his conditions. His treatment is oral analgesia. In her opinion, the plaintiff was not likely to improve.
Mr Huffman, orthopaedic surgeon
36 Mr Huffman has prepared two medico-legal reports dated 12 July 2001 and 23 July 2013. Mr Huffman noted that the plaintiff had not had any prior back trouble before commencing employment with the defendant. On examination in 2011, Mr Huffman found:
“There was a vague tenderness over the lumbar spine. Movement of the lumbar spine was hesitant but with only a mild total limitation of the range of movement.”[28]
[28]PCB 43
37 Mr Huffman reported that the plaintiff had taken only a couple of days off work after the injury on 30 October 2008 and then coped with light duties until he retired in July 2010. Mr Huffman diagnosed the plaintiff as having sustained significant aggravation of degenerative spondylitic changes in his back.[29]
[29]PCB 44
38 In his later report prepared after examination of the plaintiff on 11 July 2013, Mr Huffman noted that as a consequence of the lower back injury, the plaintiff is precluded to quite a severe extent in relation to social, domestic and/or recreational activities. He went on to say that it appears he is doing very little and can only walk one block with a walking stick. [30]
[30]PCB 48
39 I note at this point that the plaintiff, in his own evidence, conceded that he could do a lot more than walk one block with a walking stick.
Mr Kenneth Brearley, orthopaedic surgeon
40 Mr Brearley prepared two medico-legal reports dated 12 September 2012 and 21 August 2013. In his first report, Mr Brearley noted on examination:
“There is no tenderness or deformity. There is moderate limitation of movements. Flexion is possibly 70°, extension is 10°. Lateral flexion to right and to left is to 20°, and rotation is to 25° to both sides.”[31]
[31]PCB 51
41 Mr Brearley described the diagnosis as mechanical back pain secondary to aggravation of pre-existing degenerative changes in the lower three intervertebral discs of the lumbar spine. It is presumed that there has been significant intradisc damage at these levels.[32]
[32]PCB 51-52
42 Mr Brearley noted that the plaintiff:
“He is restricted in regard to all of these activities. He cannot do the heavier aspects of the housework nor can he do the gardening or home maintenance. He cannot walk for long distances and fishing is restricted now. He no longer attends AFL matches because he cannot sit for long nor stand for long periods. These restrictions and preclusions are permanent.”[33]
[33]PCB 53
43 In his final report dated 21 August 2013, Mr Brearley diagnosed the plaintiff as having:
“Aggravation of pre-existing degenerative changes in the lumbar spine. There has been significant intra-disc damage at the lower three levels.”[34]
[34]PCB 55
Mr John Aloysius Henderson, orthopaedic surgeon
44 The plaintiff was examined on behalf of the defendant by Mr Henderson, orthopaedic surgeon. Mr Henderson prepared a report dated 16 July 2009. Mr Henderson took a history from the plaintiff in respect of his low back, as follows:
“He also has problems with his low back, but this does not appear to compromise his work capacity at all.”[35]
[35]DCB 105
45 Mr Henderson’s report appears to relate to other conditions suffered by the plaintiff at that time, including carpal tunnel syndrome and ulnar nerve lesions, which resulted in the operations to the plaintiff’s hands.
Mr Gerald Moran, orthopaedic surgeon
46 The plaintiff was examined on behalf of the defendant by Mr Gerald Moran, orthopaedic surgeon. Mr Moran prepared a report dated 5 January 2011.[36] Mr Moran took a history from the plaintiff that he was currently having low-back pain most of the time and that his back movements were restricted. The plaintiff did not complain of any pains, pins and needles or numbness in his legs.
[36]DCB 111
47 Mr Moran diagnosed the plaintiff having aggravated L3-4, L4-5 and L5-S1 disc degeneration.
Dr Timothy Lowe, general practitioner
48 Dr Lowe is a general practitioner at the Otway Medical Clinic. Dr Lowe reported to WorkSafe Victoria in respect of the plaintiff’s chronic back pain. The report was dated 14 June 2012. Dr Lowe relies on the history of the plaintiff in relation to a work-related injury that he suffered as a result of stepping off a ladder.
49 The diagnosis for the plaintiff at that stage was degenerative disc disease and spinal canal stenosis. The management of the plaintiff at that time was described as being analgesia and exercise.[37]
[37]DCB 116
Conclusion of medical opinions
50 A summary of the medical evidence in this case is that the plaintiff has suffered an aggravation of his lower back condition. This aggravation is a result of the work that he has performed over a long period of time at the defendant’s place of employment. The plaintiff was able to continue his work after the last alleged incident of injury to his back in 2008. He continued work until his date of retirement in July of 2010.
Consequences for the Plaintiff
51 The plaintiff has sworn and relied upon three affidavits in support of his application for serious injury. The affidavits were sworn on 8 November 2012, 3 October 2013 and 29 January 2014. In his affidavits, the plaintiff sets out the consequences of the injury to his low back.
Sleep
52 The plaintiff states in his first affidavit that there is not a night that goes by that his sleep is not interrupted by back pain.[38] In his final affidavit dated 29 January 2014, the plaintiff confirms that his sleep is quite poor and he wakes a lot, tossing and turning. He states that he would be lucky if he got three to four hours’ sleep a night.[39]
[38]PCB 11
[39]PCB 16
53 The plaintiff has a multiplicity of injuries, including his right elbow, his left hip, his right knee and on occasions, his wrists. Each of these injuries causes him pain and, consequently, also interrupts his sleep. In his evidence, he attributes his sleep difficulties to his back injury only.
54 I do not accept the plaintiff’s evidence that the back injury is the sole cause of his sleep disruption. I am not satisfied to what extent, if any, the back injury does interfere with the plaintiff’s sleep. The plaintiff’s medical treatment over the period from 2000 to the current time is one of repeated attendance upon doctors in relation to pain for one or other of his many conditions and these conditions impact on his ability to enjoy uninterrupted sleep.
Pain
55 The plaintiff’s evidence is that the pain in his back is constant. He says the pain limits the amount he can bend and twist. I accept that the plaintiff has some pain in his back. The plaintiff has worked for a long period of time in heavy manual work going back to the 1980s and beyond. He is now a sixty-eight-year-old man.
56 I find that the plaintiff is exaggerating his level of pain in his back and the limitation that he suffers as a result of it. The plaintiff’s evidence in his affidavit sets out a situation where he effectively stays at home and does nothing. After the cross-examination of the plaintiff, it is quite clear that he is far more mobile and far more active than he has described in his affidavits.
57 I am not satisfied that the plaintiff suffers from a level of pain relating to his lower back which meets the criteria of being a considerable consequence for him.
Medication
58 The plaintiff currently takes Targin and Panadol Osteo under prescription from his doctor. The plaintiff has a number of physical conditions which require the administration of anti-inflammatory and pain-relief medication. These conditions include his left hip, his right knee, his wrists and his left shoulder. The plaintiff was referred to pain management for an elbow injury in 2011. He has subsequently been referred to pain management for his low-back injury in 2013. The pain-relief medication has been prescribed to him over the whole period of time since his retirement.
59 I am not satisfied on the evidence given by the plaintiff that the medication is solely or predominantly related to pain relief for his low back symptoms. The plaintiff has failed to establish on the balance of probabilities that the pain relief medication is for his low back injury. In this case, I am not satisfied that the use of pain-relief medication by the plaintiff is a very considerable consequence for him.
Ongoing treatment
60 I have previously set out the ongoing treatment the plaintiff is undergoing. It is a combination of medication prescribed by his general practitioners. The plaintiff has not been seen by or treated by an orthopaedic surgeon for his low-back condition. I do not see that the ongoing treatment for the low back alone is a considerable consequence for the plaintiff. It is one of the many conditions he suffers and for which he attends upon his general practitioner.
Sport
61 The plaintiff stated in his affidavit that he had given up fishing or reduced his fishing due to the fact that he had a low-back injury. At the conclusion of his evidence, it was clear that the plaintiff had ceased fishing, in particular surf fishing, as a result of his right knee injury as early as 2002. He agreed that he continues to and can do river fishing. He just does not do it very much these days. I do not accept that the plaintiff’s sporting activities have been limited by his low-back injury.
Lack of mobility and activities of daily living
62 The plaintiff, in his affidavit, stated that he does not do his garden any more. In the surveillance videos, the plaintiff was shown cutting the edges of his lawns out the front of his house by using a lawn edger. The plaintiff agreed with the suggestion that he did not have much of a garden to do at the present time. He agreed that he did mow the lawns, as long as they did not get too heavy.
63 After watching the video surveillance, the plaintiff agreed that he was able to get about and meet friends and go to their homes. He stated that he was limited in the housework that he did due to his injury to his low back.
64 I find that the plaintiff has underestimated or ignored the impact of the injuries to the other parts of his body which have been referred to previously in these reasons for judgment. I do not accept that the plaintiff has been significantly affected by the interference of the low-back injury to his capacity to be mobile or his activities of daily living.
Work
65 The plaintiff gave evidence that his low-back injury has caused him to cease work at sixty-five years of age. He further stated it prevented him from performing maintenance and renovation work for other people in his retirement.
66 I do not accept the plaintiff has planned to work with the defendant past his sixty-fifth birthday. He agreed that in his serious injury application in 2002 he stated a desire to cease work at sixty-five years.
67 Further, I do not accept the plaintiff could engage in building maintenance or renovation work due to his other physical impairments to his hip, knee, elbow and wrists.
68 I find the plaintiff has failed to establish on the balance of probabilities that the low-back injury suffered by him has caused him to stop work or limit him in his ability to perform maintenance or renovation work now.
Credit of the Plaintiff
69 In this case, the credit of the plaintiff was put squarely in issue. The defendant admitted that the plaintiff had been under surveillance for a total of 45 hours. In the course of the application, a total of 58 minutes of film was shown. The plaintiff was filmed being active. The filmed activity of the plaintiff took place on 12 January 2013, 14 January 2013, 9 April 2013 and 4 December 2013. The plaintiff was filmed on four separate occasions within the 2013 year. The film represents a spread of his activities within that year.
70 In the first film shown, the plaintiff was observed with a ladder in the back of his utility vehicle. His explanation was that he had been out to his son’s place and retrieved the ladder and was just bringing it back home. He stated that he was not going to be using the ladder.
71 The plaintiff admitted that he had a fishing boat which had an outboard motor. This was shown in the video. He stated that he went with Peter Lalor, a friend of his, to take the boat for a run out on Lake Colac. He said this occurred in the Christmas before he was filmed. The plaintiff stated that no one else used that boat.
72 In the second film dated 9 April 2013, the plaintiff was seen bending over and looking at his front wheel of his vehicle. Later on in the same video, he is observed at a metal fabricator’s premises. He stated that he, on occasion, obtained steel to do “a bit of welding here and there”. He said that he had an arc welder at home. The welding involved making up brackets for his son’s utility. He also stated that he welded a bracket on his own boat to take the 30 horsepower Yamaha engine fitted to it.
73 He stated that his reason for being outside Genua’s Steel Fabricators in Hurst Court, Colac, was that he was pricing some spouting for his home. He stated that he was not going to put the spouting up but that his son was going to do it.
74 In a later part of the film, the plaintiff was seen to be retrieving spanners from the back of a vehicle and handing them to his friend, Peter Hannigan. At another stage later on in the film, the plaintiff was seen lying on the ground and talking with the person who was under the car. The plaintiff seemed to be able to get down on the ground and lie down and get up again without much difficulty. It did not appear that his back was giving him any trouble in that type of movement.
75 The plaintiff was able to carry to slab of beer after he had attended a bottle shop. He then went to Mitre 10 and obtained a sheet of corrugated iron which he stated was going to be put behind the heater in his shed wall.
76 The surveillance of 9 April 2013 was a day of varied of activity for the plaintiff.
77 In the final film, dated 4 December 2013, the plaintiff was seen using a walking stick for the first time. On this occasion, when he attended the hotel to obtain a slab of beer, the attendant at the bottle shop put the beer in his vehicle. The plaintiff stated that he split the slab of beer in two when he got home in order to move it into the house. Later in this film, but dated 6 December 2013, the plaintiff was seen using the lawn edger on the lawns out the front of his home. He agreed in evidence that he could use that machine and mow his own lawns.
78 The plaintiff conceded that he had been to Koondrook on the River Murray with friends fishing. He had also been down to Apollo Bay for a caravan type holiday. The plaintiff’s evidence was he engaged in both activities both before and after his injury in 2008.
79 I am mindful that one has to be careful when assessing a plaintiff on a short amount of surveillance video footage. In this case, however, the plaintiff had very clearly set out a very bleak picture as to his daily existence. He stated as follows:
“I really miss work. In fact I am finding it difficult just living from day to day. Being single, living on my own, I had nothing to live for but my work. I managed to get back to work after my shoulder and knee injuries and other problems.”[40]
[40]PCB 13
80 In his affidavit sworn on 8 October 2013, he stated:
“I feel that I live a very sad and depressing existence. I just live from one day to the next. I see my son on weekends.”[41]
[41]PCB 19
81 In the video film, the plaintiff is seen mixing with friends and socialising on the basis of assisting them with work in the garage. He is also seen driving his vehicle around Colac and agrees in evidence when cross-examined that he is able to do that. He agreed that he had a number of friends who he visited and they visited him at his home. He gave evidence that he had a refrigerator and television in his garage which he in effect described as if it was a lounge room.
82 I find that the plaintiff had attempted to exaggerate how serious and sad his existence had become due to his lower back injury.
83 In evidence the plaintiff stated that the hip was “reasonably good”. This is not consistent with the medical evidence in the tendered materials.[42] I find that the plaintiff understated the effect that his left hip injury is having upon him.
[42]T40
84 Later in his evidence, the plaintiff said:
Q:“To discuss further revision of your hip?---
A:I don’t think it was a revision. I can’t recall what was said.
Q:It has got here, ‘Has been painful but recently pain has improved’. And it’s got ‘Panadeine Forte and OxyContin sometimes. Pain in left hip when walking. Suggesting loosening again.’ This is the hip. Do you remembering seeing that? They were concerned---?---
A:I remember seeing him, but I didn’t what they diagnosed.
Q:And was it discussed about the hip being revised?---
A:Yes, he did discuss it and he asked me and he did say that I wouldn’t let him do it because it wasn’t - - -
Q:Did you then get referred back there, if we are staying on the hip, in 2012?---
A:Yes, I have been back.
Q:And you go in 2011, then you go in 2012?---
A:Yes.”[43]
[43]T65
85 It is clear from this evidence that the plaintiff was trying to underestimate and understate the impact of his left hip injury on his condition generally.
86 In conclusion, I do not accept that the plaintiff was honestly and accurately describing the impact of his lower back injury or condition on his life. The plaintiff, on every occasion, exaggerated and overstated the impact of his low-back condition. He persistently and consistently understated or simply ignored the other serious physical impairments and the impact they have on his life.
87 The plaintiff has the onus of proof in this case. I have not been able to accept his evidence in full in relation to the condition of his back and the consequences that flow from it for him.
Conclusion
88 After consideration of all the evidence and taking into account all the consequences suffered by the plaintiff as a result of his low-back injury, I am not satisfied that such consequences, when judged by comparison with other cases in the range of possible impairments, can be fairly described as being more than significant or marked or as being at least being very considerable. The plaintiff has failed to satisfy the statutory test for serious injury for pain and suffering as a result of the injury to his low back during the course of his employment with the defendant and in particular on 30 October 2008.
89 The application for pain and suffering certification is dismissed.
90 I will hear the parties on costs.
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