Chaddoud v Amcor Limited
[2022] VCC 229
•8 March 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-20-05505
| ALI CHADDOUD | Plaintiff |
| v | |
| AMCOR LIMITED | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11 and 12 November 2021 | |
DATE OF JUDGMENT: | 8 March 2022 | |
CASE MAY BE CITED AS: | Chaddoud v Amcor Limited | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 229 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Damages – serious injury – injury to spine – pain and suffering – loss of earning capacity – causation – credit
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b), s134AB(37) and (38)
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Jayatilake v Toyota Motor Corporation Australia Ltd (2008) 20 VR 605; Dordev v Cowan & Ors. [2006] VSCA 254; Hawkins v DHL Express (Australia) Pty Ltd [2013] VSCA 26; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181; Woolworths Ltd v Warfe [2013] VSCA 22
Judgment: Leave granted to bring proceedings for damages for pain and suffering. Loss of earnings application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Richards QC with Mr D O’Brien | Angela Sdrinis Legal |
| For the Defendant | Ms D Manova | Hall & Wilcox |
HER HONOUR:
1This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff during the course of his employment with the defendant from 1998 to 2012 (“the period of employment”).
2The plaintiff seeks leave to bring proceedings for damages in relation to both pain and suffering and loss of earning capacity. These discrete heads of damage require the application of different statutory tests, as mandated by s134AB(37) and (38) of the Act.
3The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act. There, “serious” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function.”
4The body function relied upon in this application is the spine. An application pursuant to subparagraph (c) for psychiatric impairment was withdrawn during submissions.[1]
[1]Transcript (“T”)’ 114
5Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages.
6The impairment of the body function must be permanent.
7The plaintiff bears an overall burden of proof upon the balance of probabilities.
8By ss(38)(c) of the Act, the impairment must have consequences in relation to pain and suffering or loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being “at least very considerable” and “more than significant or marked”.
9I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.
10In this application, where there is a claim for loss of earning capacity, that loss must be to the extent of 40 per cent or more, both at the date of hearing and permanently thereafter. The formula by which loss of earning capacity is to be measured is set out in s134AB(e) and (f) of the Act.
11Questions of rehabilitation and retraining must be considered in whether the 40 per cent loss has been established.[2]
[2] Section 134AB(38)(g) of the Act
12I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[3] and Haden Engineering Pty Ltd v McKinnon[4] in reaching my conclusions.
[3] [2005] VSCA 33
[4] (2010) 31 VR 1
13The plaintiff relied upon three affidavits and gave viva voce evidence. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
14Causation was in issue, the defendant’s case being that any injury suffered during the period of employment had resolved and the plaintiff’s current spinal condition was degenerative. Further, in issue was the plaintiff’s credit, range[5] and whether the plaintiff had suffered the requisite loss of earning capacity of 40 per cent.
[5]T117
15The plaintiff’s case was that by reason of the heavy work undertaken by him during the period of employment, he suffered lumbar disc injuries by 2012 such that he could not continue in his trade as a printer and had struggled to work ever since.[6]
[6]T135
The Plaintiff’s evidence
16The plaintiff is presently aged forty-one, having been born in April 1980. He completed Year 12 before commencing an engineering apprenticeship, which he left after three months, as he was offered employment by the defendant.
17The plaintiff commenced work with the defendant in late 1998, following in his father’s footsteps. He passed a pre-employment medical in December 1998. Initially, he worked as a printer’s assistant, which involved repetitive manual handling, involving lifting and carrying heavy buckets of printing ink.
18During his apprenticeship, he predominantly worked in colour matching – carrying, lifting and emptying buckets of ink, fifty to eighty per shift, weighing about 15 to 25 kilograms. He almost immediately began to experience mild pain and restrictions in his spine after starting the job, and he commenced physiotherapy treatment.
19In 2002, he started an apprenticeship. That year, he had an increase in back pain, due to the repetitive heavy lifting required in his job and he again sought physiotherapy and did home exercises. He saw his general practitioner (“GP”) after he experienced referred pain into his buttocks, causing problems with prolonged walking and sitting.
20He performed his usual duties and having just finished his apprenticeship, was determined to obtain his qualification. He continued to have physiotherapy and took Brufen each day and Valium to help him sleep.
21His GP eventually certified him as fit for only light work, but the defendant put a lot of pressure on him to return to his usual duties, and the medical restrictions were often ignored.
22The plaintiff assumed he would no longer be required to complete large volumes of manual work and heavy lifting once he completed his apprenticeship and became qualified.
23The defendant closed a number of printing plants around Australia during 2009, which increased the workload at Preston, where the plaintiff was working. He was required to complete all aspects of the printing process during that time, and was also required to work at a very fast rate.
24He continued to see his GP and was advised to seek alternative employment, which was not easy for him, as he had worked for the defendant all of his adult life.
25He began to consider and investigate other employment options, and was able to do so as he worked three twelve-hour shifts, meaning there were free days during which he could try something else.
26He started a business in 2010 to take advantage of the Commonwealth Government insulation scheme. He sought and quoted work while his brother installed the insulation, however, the business failed after a few months, when the scheme was discontinued.
27The plaintiff experienced a significant increase of back pain after a heavy day of work on 31 October 2011. In his November 2011 Claim Form, he described damage caused to the L5 disc area of the lower back as a result of repetitive lifting and bending of ink pales. His nominated treater was Dr Zaini at Rochdale Medical Centre.
28The plaintiff continued to work until 7 February 2012, when he resigned, because he was only capable of completing alternate duties. He was concerned he would be required to return to full time duties. It was not an easy decision for him to resign, however, he thought that would aid his recovery.
29His weekly payments were stopped immediately after he left the defendant in 2012 when he started his own business, Powerhouse – repairing and rectifying faulty insulation schemes.[7] He predominantly spent his time inspecting houses and taking photographs of reported problems, before sending workers to rectify any issues. He thought he could regulate the amount of physical work he did and rest when required.
[7]T14
30Powerhouse did not succeed and lasted only about nine months, because he was not able to consistently complete many of the physical tasks, or work the hours required when starting a business. He had significant pain climbing onto roofs and was often unable to comply with his obligations.
31Powerhouse went into liquidation in 2014. He was not able to say what income the company earned, as he did not have copies of the business records or the documents from the liquidator’s file. It was the only one which he had.[8] In the end, Powerhouse turned out to be a loss. He did not submit business taxation returns for later years. Powerhouse’s financial details would be with his last accountant.[9]
[8] T23
[9]T24
32When he first did insulation work, it was as an ABN solo trader. Later, when applying for the government contract, he required his own company.[10]
[10]T23
33His ongoing spinal pain and restrictions have prevented him from returning to any form of work since 2013. He was financially destroyed, and had no assets, and relied on his ex-wife for support. This was devastating, as he had been able to work consistently since he was eighteen.[11]
[11]December 2019 affidavit
34His pain and restrictions prevented him from being able to work as a printer. He could not stand or walk for long periods, as the job required. He was not able to carry or lift heavy buckets of ink. He was lost without his trade as that was the only work he had ever considered.
35He worried about the future and was unsure what type of work he would be able to do within his restrictions. Attempts to return to work in a supervisory role failed. He was then consumed by spinal pain and found it difficult to concentrate or learn new tasks. He had never worked in an office or operated a word processor. He struggled with prolonged postures. His spinal pain fluctuated, and he struggled to consistently attend employment.
36As of December 2019, he continued to experience significant spinal pain and restriction. The pain was worse in his spine and radiated into his right leg. It fluctuated and was always present, and increased with prolonged postures.
37The spinal pain was worse in the mornings, and he required a hot shower just to get dressed. He was unable to bend or lift without experiencing a significant increase in back pain.
38His ongoing spinal pain made it difficult to go to sleep and stay asleep. Every night when he did manage to sleep, he was constantly tired, lethargic and irritable with those around him due to his inability to sleep. He then relied on medication to cope, taking Celebrex and Endone most days.
39He tried to rehabilitate himself as much as possible, and actively had physiotherapy for many years and did home exercises. He ceased work with the defendant when it became clear he was not recovering. He had not experienced any lasting relief, despite his attempts to recover.
40He had developed significant symptoms of anxiety and depression as a result of his spinal problems, and experienced guilt and fear that he would never get better, and felt as if his life was passing him by.
41He self-medicated on drugs to help him cope with his anxiety and depression, which he developed as a result of his spinal issues. He had used marijuana and amphetamines, but he managed to stop taking them and concentrate on caring for his children.
42His spinal issues prevented him from engaging in many domestic tasks without pain. He was unable to vacuum, mop or wash the dishes without pain, and relied on help from family and his older children, and felt guilt about the situation.
43He was unable to independently care for his children when they were younger, and had only recently been able to care for them without assistance, as they are old enough to get in and out of the car and no longer needed to be carried.
44His spinal problems impacted all aspects of his life, and he was constantly surprised by his restrictions. He had difficulty getting dressed and experienced an increase in pain when cleaning himself after using the toilet. On one occasion, he could not get up from the toilet because of back pain.[12]
[12]T27
45He had regularly played golf pre injury, especially during the summer, but was now unable to do so as he was unable to complete the swinging motion necessary to hit the ball, and could not carry his clubs or walk around the course. That was a significant loss, as golf was an important part of his life.
46In his second affidavit, sworn in February 2020, the plaintiff set out details of his pre-injury earnings and claimed wage loss.
47In 2011, he was paid a gross hourly rate of $31.31, being a gross weekly wage of $1,150. He was entitled to a shift allowance of $253.68, making a total gross weekly wage of $1,381.15, together with superannuation.
48He was then aged thirty-nine and had no plans to retire, intending to work as long as he was physically able to do his printing duties. Many of his family were printers who were still working, and he believed he could have worked until his late sixties.
49He submitted his last personal income tax return for the financial year ended 30 June 2012. He had not submitted later returns because he has not been working – until working for his wife.[13]
[13]T23
50In 2014, he had a little bit of money, and started drawing on the family home, which eventually was sold.[14]
[14]T15
51In the 2014-2015 financial year, he was paid $13,310 Centrelink benefits. This was the only year he had received these benefits. Between 2016 and 2018, he had no income and just family support. He did not apply for Centrelink because they told him that, as he had a legal claim, he was not entitled to benefits.[15]
[15]T14
52The plaintiff could not explain why Dr Alkhoury, in October 2015, noted the plaintiff was “having stress at work”.[16]
[16]T60
53In December 2018, the plaintiff agreed to assist his wife run a tobacconist shop (“the shop”) in Yagoona. She paid him $250 for two hours’ work each morning. In addition, his family had lent and given him money.[17] At that stage, he was renting a granny flat in Yagoona, near the shop.[18]
[17]T15
[18]T18
54He did not submit a taxation return when his wife began to pay him $250 cash a week, because his thought the amount was under the threshold. He has had no issues with the ATO chasing him for his taxation returns or commencing proceedings against him in the Victorian County Court.[19]
[19]T25 – Documents tendered by the defendant – Court Connect printout – Case ID CI-15-01915
55The plaintiff was cross-examined at length about his involvement in the shop.
56When he first started working for his wife in the shop, it was maybe three days a week, just for a couple of hours, and then slowly increased to six hours. Sometimes he worked three days in a week, sometimes four to six hours a day.[20]
[20]T18
57“Of course” when he increased his hours in 2018, he noticed an increase in back pain. “Of course” he went to Dr Qureshi in Yagoona and spoke to him about his increased pain and was advised to keep taking medication, do physiotherapy exercises, lose weight, “various things”. “Of course” he went to the physiotherapist. He went to Back in Motion in Bankstown and Yagoona Physio. WorkCover last paid for his medical treatment around 2012.[21]
[21]T20
58His work in the shop was not physical work like printing. He had customers who came in and bought smokes. He did general housekeeping and wiped things down and filled up the shelves and stock. Sometimes he did some banking. At times he opened and closed the shop, but he did not do the stocktake. Two other employees and his wife worked in the shop, which was sold in July 2021.[22]
[22]T22
59He did not know why he could not work eight hours a day, five days a week, with a break to do his exercises. It was great at the shop because he had the opportunity to try and work as much as he could, but he found that anything more than six hours was just too painful. He was not able to work more than six hours, like, solid straight time. He would have to stop for a couple of hours, maybe go home and rest and take some medication, and then come back.[23]
[23] T32
60Ultimately, he was opening the shop early, around 6.30am, and then would leave by 8.30am to take the kids to school, and his wife would come in. He stayed at home for a couple of hours and then maybe came back in the afternoon and his wife would go home and get the kids from school. There was always a lot of coming and going. He agreed he split up the day. It was not like he would have a day where he would be at the shop for six hours. That was pretty much the routine all the time.[24]
[24]T33
61The plaintiff’s wages increased from $250 at the shop, maximum of $600, but on average $500 a week. To earn $600, he had to work 24 hours a week.[25] He had to pay for living expenses out of that cash, and his wife provided food. They lived in a two-storey, four-bedroom property.[26]
[25]T46
[26]T47
62He could not remember telling Dr Nair the shop was a family business. It did start like that with his wife and her family.[27]
[27]T48
63When Dr Qureshi noted on 10 March 2020 that the plaintiff’s employees were very wary of him saying the wrong thing, the plaintiff was referring to his wife’s employees. She took all the fruits of the business and he drew a small wage.[28]
[28]T63
64He did ask the new owners of the shop whether he could stay on. They had enough staff, and the lockdown was on. He gave them some advice on how the alarms and surveillance system worked.[29]
[29]T33
65He has been to the shop a couple of times to help out the new owners with the alarm. He has not been back there to do any work as such. There were three small storerooms in the building that his wife was renting as part of the lease. When she handed over the shop, they kept one room where he has a bed and some of his clothes. He sometimes stays there and sometimes goes there during the day.[30]
[30]T51
66After the sale of the business in July 2021, his wife gave him $8,900, which he had been living on, together with COVID-19 disaster payments of $750 a week, because he was working more than 20 hours a week.[31]
[31]T34
Surveillance
67The plaintiff was filmed on 13 August 2020 opening the shop at 6.59am. He described bending, not squatting, to open the door. He then agreed he was shown squatting to undo the padlock. He could not remember that day if he was still at the shop at 3.39pm when filmed behind the counter – “we come and go frequently”.[32]
[32]T75
68Counsel for the defendant indicated it would ultimately be put that the plaintiff was at the shop all day every day working full time and there may be some occasions when he left briefly. When I asked the plaintiff’s response to the suggestion that it was pretty much a full-time job and it was an exception where he might be there in and out, he agreed this was the case.[33]
[33]T76
69He did not anything about the business “Hamec Design Studio” whose sign appeared above the white security door he was filmed opening.[34]
[34]T76
70The plaintiff was next shown at 6.30am opening the shop on 31 August 2020.[35] He was again shown squatting. He agreed he was able to twist and move his back to hit the dust off a doormat against a rubbish bin. That did not cause him any trouble. When it was suggested that he got to the shop at 6.33am and left at 8.30pm, he said he probably would have left and come back at night to close up, because there were staff who worked in the afternoon. He agreed he was shown at the shop at 5.52pm and at 6.08pm.[36]
[35]T75. He was also filmed opening the shop on 2 and 3 September and 7, 8 and 9 December 2020 and also on 16, 27 and 29 April 2021. On 8, 14,1 5, 25 and 26 October 2021, he arrived at about 7.45am and unlocked the white security door. The shop was sold in July that year.
[36]T77
71Counsel for the defendant asked the plaintiff again whether he had accepted that he was working full time at the shop. He said “no, my hours are very staggered”. Reminding the plaintiff of the suggestion he earlier agreed with, he said:
“Sorry, your Honour, I probably misunderstood the question slightly, but it’s something that, you know, I work towards so when I first started my hours were very minimal and over the coming years I’ve ramped up my efforts and again I come and go very, very … .”[37]
[37]T78
72He again apologised:
“But there is [sic] some moments when it drops out just for that split second and I miss it, but yes I agree in the sense that I work there and come and go, but that’s what I understood.”[38]
[38]T79
73He confirmed that he “misunderstood everything” when it was pointed out to him this was a significant issue.[39]
[39]T79
74The plaintiff attended the shop building on 8 October 2021 at 7.54am. He denied he was attending a business owned by Lebanese architects. There was no one else up there. The architects were there a very long time ago before his wife bought the shop, so he did not know who they were. He pays the rent for this one room, which he needed when his family caught COVID to isolate himself for a while. He stayed there predominantly during that time. He did not know where he had slept the previous night. He may have slept at his ex-wife’s.[40]
[40]T82
75The plaintiff was shown arriving at the shop building at 7.49am on 14 October 2021. His clothes were in his bag. He was living “a very, sort of, hotel-type of life”. He never knew where he was sleeping or staying – “I’m very unstable.”[41]
[41]T83
76He agreed that he attended fairly regularly at the white security door, and he did so in the morning because he was “a morning-type of person.” He could be going there for various reasons – to shower, change his clothes. He did not know.[42]
[42]T83
Current situation
77The plaintiff swore his most recent affidavit on 8 September 2021. He was then living at Georges Hall in New South Wales with his wife and four children. His wife owns the house.[43] Although they had separated, he had decided to live at the same address due to the pandemic and his wife’s upcoming surgery in September, and the recent sale of the business.[44] His wife and children all caught COVID, and his wife was in ICU. He cared for her and the children. He did not get the virus.[45]
[43] T86
[44]T39
[45]T72
78He was going to figure out what he was going to do with his life, and “that was hopefully on the way”. He was trying to get back with his wife ultimately. He was finding it really difficult to see what he could do in the future workwise, because he was not stable and he did not know where he was living, and “it was very hard”.[46]
[46] T41
79He moved to Melbourne to stay with his parents for the hearing – not on a permanent basis, and he would probably go back to New South Wales by Christmas.[47]
[47]T40
80He has been on and off with his wife over the last few years.[48] They sold their Melbourne house around 2015-2016, and he moved to Sydney sometime between 2016 and 2017, to live close to his family after his wife and children moved there a few months earlier. Her parents were originally from New South Wales.[49]
[48]T15
[49]T18
81His significant back pain and restriction continue. The pain fluctuates, and is always present, and increases with prolonged postures. It can take him a number of days to recover from any increased activity.
82His routine with a hot shower and difficulty getting dressed continues. He struggles to lift and bend without experiencing a significant increase in back pain. He has ongoing problems with sleep.
83He has tried to rehabilitate himself as much as possible. He has had massage and consulted a physiotherapist without experiencing any lasting relief. He changed his diet to try and lose weight to take pressure off his spine. He has not experienced any lasting relief, despite treatment.
84He continues to rely on prescription pain medication, taking one Mobic every morning and Nurofen when the pain becomes severe, which occurs multiple times most weeks. He also takes mirtazapine at night to help him sleep.
85Symptoms of anxiety and depression persist as a result of his spinal problems and has been told he has developed a Major Depressive Disorder, which is unlikely to resolve.
86He continues to be incapacitated for any type of physical work and any attempts to return to work have failed. The shop had been sold but it was not a sustainable role and he did not believe he could cope with or obtain that type of work in the open market.
87He remains hopeful of being able to return to some type of employment in the future and he is currently researching an online industry – “drop shipping”, involving sourcing items for buyers on the internet.
88He was basically thinking that working for himself would be better, in the sense that he would be able to manage his time and hours.[50] Drop shipping has become very popular as a way for people to be working from home. He was just looking for something that he could work towards by himself that would not cost so much money to start up. All he needed was a computer, and he knew how to use one. He agreed that it is not difficult to set up a company because he had done so in the past.
[50]T41
89A storage facility is not required for drop shipping, at least at the start of the business.[51] A shopfront is not required and the business can be operated from home. He has researched drop shipping, watching a lot of YouTube videos around it – tutorials and such from other people in the industry.[52]
[51]T42
[52]T43
90He “guessed” he told Dr Nair that if it was not for COVID he would be trying to get another job. There is not much more he can do for the drop shipping business. He has not set up a website and he is in the process of setting up a company. Just before coming to Melbourne, he had spoken to his accountant, someone his wife had always used for the shop, who was helping him to set up the drop shipping documents. There have been no internet transactions to commence trading. The products that would be involved in the business were whatever was popular at the time.[53]
[53]T50
91He had recently set up a family trust after speaking to the accountant. He wanted to do that for his own business. He and his wife also went to the accountant to close off matters for the tobacco shop.[54] AC Imports Pty Ltd might be the name of the trust and its address on company documents was the accountant’s address.[55]
[54]T84
[55]T85 – documents tendered by the defendant – ABN Lookup – The Trustee for Ali Chaddoud Family Trust (current), ASIC current extract – AC Imports Pty Ltd (CAN 655 059 993)
92He believed he could register a business not having recently lodged a taxation return. He has not made any applications for credit in the name of his new business.[56]
[56]T87
93He really enjoyed working as a printer. It meant a lot to have lost his trade. He would do his best to make a living out of drop shipping.[57]
[57]T93
94The plaintiff had considered moving to Victoria to complete a TAFE course prior to the pandemic, although he was worried it is not a sustainable job option. It was a short course on business management and administration in Melbourne online. At that stage, he could not afford it. He had made enquiries about the costs of the course and the cheapest were around $800 up to $2,000. He has not enrolled yet because he is “not in a good place”.[58]
[58]T44
95He could do a course and manage his pain by changing posture when necessary.[59]
[59]T69
96He disagreed that he could do the Certificate 3 or 4 training course for a trade teacher suggested by Mr Radley. Apprenticeship in a trade school does not exist anymore. He reached out to some of his former work colleagues at the defendant who told him there is no more trade school.[60]
[60]T70, T71
97No one on behalf of the insurer has ever offered to fund any TAFE courses.[61]
[61]T92
98Working as a driving instructor is definitely not something he would be willing to do, as driving is quite challenging, sitting in the car for that long.[62]
[62]T71
99He had not done anything in a formal sense to retrain, just read as much as possible – up to 3 or 4 hours a day – trying to set a good example for his children so they would not have a life like he did, to get them to go to university.[63]
[63]T68
100The plaintiff could not work for various reasons. While he agreed he looked fit on the surveillance film, he could not work because:
“While when you work in the flexibility that I have, you know, with my wife being the boss, I guess, you know, having rooms upstairs, to be able to, you know, relax when the pain becomes severe and what not. There’s that flexibility there, you know, having, if I have to work with somebody as an employer [scil employee] I’m afraid I’m not going to have that flexibility.”[64]
[64]T87
101In re-examination, the plaintiff confirmed the importance of the flexibility of his job in the shop. On average he worked during the day about six, and at most, eight hours. After working six hours, he felt, “like, it was comfortable without, sort of, experiencing excruciating pain”, but once he got to eight hours it became really hard to continue. On average, he worked up to thirty hours a week, and at the most, forty. Working thirty hours, he found it to be a bit more comfortable for him and his condition. At times when he worked forty hours, he would pull up quite sore.[65]
[65]T90
102He is afraid that being employed by others he may not be able to be consistent with his hours and commitment, because of his condition fluctuating day to day, depending on what he is doing. Predominantly his pain is in his back, then the hips, and then the legs – more on the right side.[66]
[66]T91
103Having sat on Zoom for the morning of the hearing, when he got up, he had to do so really slowly and adjust his back. It just cramps if he stays seated for too long. His rated his pain towards an eight. He did not think he would be able to reliably work for someone else, day in, day out, even in a light job full time, as his back does not allow him to commit to those kinds of hours without having the opportunity to stop, rest and stretch.[67]
[67]T92
Activities
104Spinal pain and restrictions continue to impact many aspects of his life, and his difficulties with toileting continue.
105It is difficult to care for his home and children, and he experiences a significant increase in back pain when attempting any heavy work such as vacuuming or mopping. His reliance on his children for assistance causes friction at home.
106He has not been able to return to hobbies, such as playing golf, and his activities are extremely restricted. He last played golf around 2010. He has never had a handicap and did not know what one was.[68]
[68]T28
107He tries to be as active as possible, but it can take him many days to recover after socialising – “family occasions”,[69] especially if he has to walk for long distances.
[69]T29
108His physical activities are extremely restricted. He cannot pick up his kids, put them in and out of the car. He had difficulties kicking a ball with them. He could no longer play sports like golf, snooker, some of the things he really enjoyed. He agreed that his six-year-old only needed help getting in and out of the car four years ago.[70]
[70]T26
109Sitting on a chair for too long, or exercising too strenuously – going upstairs quickly, not doing it carefully – or various things, can cause pain. He had to be very thoughtful of his activities and what he is about to do.[71]
[71]T27
110Walking is his only exercise, and he does not go to the gym or have a gym at home. He has not been a member of a gym for many years.
111When told that Professor Buzzard, the Medical Panel and recently, Professor Dan, noted on examination the plaintiff’s musculature, big muscles on his chest and arms, his bodybuilder physique – the plaintiff said he had always been well-defined and always had good, solid arms. He had not done any weights or bodybuilding since 2012. He did not think he could do any lifting without hurting himself and making his condition worse. He kept himself healthy in other ways. He had tried to do squats unweighted at home, but he did not have the mobility to get into that position. He would not be able to squat as a gym exercise at the gym without hurting himself. If he had to squat in daily life, he would have to do it carefully, with a little bit of thought.[72]
[72]T37
112He appreciated the compliment, but he had never done any sort of weightlifting or gone to a gym. He was pretty fit, pretty healthy, and he had “good genetics”. He had been that way since he was a kid.[73]
[73] T39
113He denied he said he was not doing weightlifting because he thought that would be inconsistent with his evidence that he could not work. Weights are not something that he wishes to do. It has not been his hobby.[74]
[74]T39
114When it was suggested to him that surveillance film showed he had a substantial musculature around his chest and arms, he said his chest is now very soft, but he has always had good arms. He does not lift weights, and his physique is from his home exercises.[75]
[75]T81
115He agreed that his lifting limit at home and at work was up to about 10 kilograms, and there were not many things that weighed more than that in the shop. He had no trouble stocking the shelves.[76]
[76]T31
116His spinal injuries and/or psychiatric injury he sustained as a result of employment with the defendant continue to have a significant impact on his life.
Treatment
117He agreed that he did not see a neurosurgeon as was suggested in 2016.[77] The insurer refused to pay for it.[78]
[77] T51
[78]T92
118Daily at home, he does core exercises lying on his elbows, twisting his torso from left to right, and bringing his knees up to his elbow.[79] He did these exercises when working at the shop if he was feeling a little bit sore and stiff and he needed a little bit of mobility.[80] These exercises help.[81]
[79]T54
[80]T31
[81]T32
119The sum total of his medication is some Mobic and anti-inflammatory medication prescribed by Dr Qureshi, his current GP. Before that, Dr Lombardo was his GP.[82] He had earlier attended Dutton Street but was told they did not see WorkCover patients.[83]
[82]T51
[83]T66
120He has taken various types of antidepressants, but his current medication, mirtazapine, is for sleep.[84] He also understands it is to improve his frame of mind.[85]
[84] T52
[85]T56
121Since 2015, he has been regularly prescribed Mobic and has been taking it “on and off” for his back pain. He could not take it for more than three days as it is quite strong. It has been a bit challenging during COVID, but he had obtained two prescriptions on Telehealth, as well as the one noted by his GP in March 2020.[86]
[86]T53
122The plaintiff had a telephone visit with neurosurgeon, Dr Simon McKechnie, in 2020. He suggested the plaintiff have a cortisone injection. “Of course” he had considered the injection, but his GP was not too supportive of it at that point, and it was not brought up again.[87]
[87]T62
123His last treating psychologist was Dr Bassit in Yagoona, whom he last saw in 2020, before the pandemic. The psychology sessions, which continued until mid-2020, were funded under a mental health plan.[88] He had seen a psychiatrist, Dr Saker, many years ago, in maybe 2015 or maybe longer.[89]
[88]T56
[89]T45
124He has discussed with his psychologist going back to work, but at the time was working in the shop, so looking for a job was not an issue. Dr Bassit was trying to repair the marriage and help the plaintiff live a normal life. When it was suggested he was really attending the psychologist for personal reasons, the plaintiff explained:
“Of course, everything was mentioned, my life and all these things that are happening and the last year it was all about my marriage breaking down and not being able to have much hope. They tried couples therapy.”[90]
[90]T57
Taxation summary
Financial Year Ended Gross Taxable Income 2001 $46,398 2002 $5,179 2003 $56,509 2004 $57,323 2005 $74,594 2006 $83,861 2007 $87,126 2008 $80,650 2009 $74,905 2010 $87,408 2011 $86,275 2012 $53,183
Treaters
125The names and contact details of his treating health practitioners were set out in the plaintiff’s Form A dated January 2020.
126Those medical reports and clinical records indicated he had been treated by Dr John Lombardo at Yagoona, Epping Plaza Medical Centre, Rochdale Medical Centre, St Kyrollos Medical Centre, Dutton Street Medical Centre, Mill Park Superclinic, Dundas Street Clinic, Preston Family Centre, Oriel Road Medical Centre and physiotherapists at Back in Motion, Bankstown. He consulted his current GP, Dr Qureshi, every four to six weeks.
Reports
127Dr Jennifer Andrews from Dundas Street Medical Centre reported in May 2014. She had not seen the plaintiff since 13 November 2002. On examination, he was tender over right hip, loin and right iliac fossa, and there was a full range of lumbar movements, and no neurological signs. The diagnosis was probable discogenic low back pain. She could not comment on his current capacity.
128Mr Giles from Heidelberg Physiotherapy reported in September 2002.
129He first saw the plaintiff on 12 July 2002, when he described work-related back pain. He thought the plaintiff had improved steadily in the three-month period of treatment, regaining range of mobility and increasing back strength. To his knowledge, the plaintiff had not taken time off work to due back pain and was performing his normal duties. He thought the plaintiff may require ongoing treatment one to two times a week over approximately four more weeks.
130Dr Saddik from St Kyrollos Family Clinic referred the plaintiff for physiotherapy on 8 August 2008 for opinion and management of “recent lower back pain associated with loss of lordosis? spasm for regular physiotherapy and manipulation exercises”.
131Dr Hagona from Mill Park Superclinic reported in November 2009, having first seen the plaintiff on 10 June 2009.
132The plaintiff then complained of an umbilical hernia which had increased in size and pain, and had started after straining at work. She thought his employment was a substantial contributing factor. When Dr Hagona saw the plaintiff on 10 September 2009, he informed her that surgery was booked for the umbilical hernia later that month.
133Mr Francis-Pestter from Amcor Flexibles referred the plaintiff to Dr Ross Wines in 11 February 2011. The referral followed the plaintiff suffering left-sided pain following a lifting incident that morning.
134Dr Hussie Zaini, GP, from Rochdale Medical Centre, reported to the plaintiff’s solicitors in May 2014, detailing attendances in late 2011/early 2012.
135On 7 November 2011, the plaintiff complained of back pain related to an injury at work one week earlier, while he was lifting heavy and large ink boxes. Dr Zaini provided certificates of capacity. On 8 December 2011, he referred the plaintiff to Back In Motion physiotherapy. On 11 January 2012, the plaintiff still complained of severe back pain.
136Dr Joseph Lombardo from Sports Medicine Australia wrote to Gallagher Bassett in April 2015.
137Having seen the report of the current MRI scan (24 September 2014), he thought the plaintiff’s problem was related to the L4-5 disc extrusion.
138In October 2016, he sought permission from Gallagher Bassett to refer the plaintiff to a neurosurgeon, Dr R Parkinson, for an opinion regarding surgery for his prolapsed L4-5 disc.
Investigations
139Dr Jennifer Andrews organised a lumbar CT scan on 9 May 2002. It was reported there was a minor foraminal disc bulge on the right side of L3-4, with a minor focal posterior disc bulge centrally at the level of L4-5, no associated spinal canal stenosis or nerve root impingement, however.
140A further lumbar CT scan was organised by Dr Ross Wines in February 2011. It was reported there was no central canal stenosis or nerve root compromise detected. There was multilevel mild disc degenerative change and small disc bulges.
141Following a lumbar CT scan arranged by Dr Wines in November 2011, it was reported at L4-5, there was minimal focal central disc herniation, slightly impressing on the dural sac. The nerve roots and lateral recesses were considered normal. At L5-S1, there was diffuse right posterolateral disc herniation causing some compromise of the dural sac. The nerve roots and lateral recesses were considered normal.
142Dr Alam organised a lumbar CT scan in February 2014. It was reported there was straightening of the lumbar spine, suggesting muscle spasm due to pain, but no segmental malalignment. There was a posterocentral disc protrusion at L4-5 causing moderate central spinal canal narrowing. There were minor annular disc bulges at L3-4 and L5-S1 causing mild thecal sac indentation. There was marked sclerosis on the sacral aspect of the left S1 joints, suggesting sacroiliitis.
143Following a lumbar MRI scan in September 2014 organised by Dr Lombardo, it was reported that at L4-5, there had been a small left posterior paracentral disc protrusion with subligamentous caudal migration, the extruded fragment contacting the left L5 nerve root without compressing it. At L5-S1, there had been a small central posterior disc protrusion accommodated within the epidural fat, without neural contact displacement or compression. There was a mild posterior disc bulge at L3-4.
144The most recent lumbar MRI scan was organised by Dr Qureshi in March 2020. It was reported back muscle spasm; L3-4 mild to moderate disc bulge with mild impingement of L4 nerve roots while descending; L4-5 mild disc bulge with no remarkable nerve compression; L5-S1 focal disc protrusion with left-sided facet arthropathy and moderate to marked impingement of the left L5 nerve root at the foramen.
Medico-legal report evidence
The Plaintiff’s medico-legal evidence
Dr Kevin Fraser, rheumatologist
145Dr Fraser examined the plaintiff on behalf of the insurer in November 2002.
146Dr Fraser thought the plaintiff gave his history in an honest and straightforward fashion and there was no overreaction on physical examination.
147He thought most likely, the plaintiff’s low back symptoms were due to musculosligamentous strain as a result of heavy lifting in the course of his work.
148He then suggested the plaintiff was unfit for his normal duties but fit for work which did not involve repeated bending and or lifting greater than 5 kilograms. The prognosis in such cases must always be guarded but symptoms should eventually resolve.
Mr Clive Jones, orthopaedic surgeon
149The plaintiff was seen by Mr Jones on behalf of the insurer in December 2011.
150He concluded the plaintiff had discogenic back pain with radiological changes in the lower lumbar spine. Work experiences appeared to have aggravated this essentially degenerative condition. He then thought employment appeared to be associated with the plaintiff’s current work absence.
151The work duties would have caused pain by way of aggravation of the underlying condition. He believed the matter was one of aggravation of a longstanding back problem, with employment a significant contributing factor.
152He noted the plaintiff had had similar symptoms in the past, extending back to 2003, and that variable levels of back pain had been a problem for him more or less ever since the condition surfaced.
153The plaintiff was then working part time on laminating tasks. He advised he was somewhat concerned, in that his employer expected him to return to normal duties the following week and the plaintiff felt at that stage of his recovery, he may struggle to do so.
154He recommended for the next few weeks the plaintiff stay on his current light duties and slowly increase his hours until recovery had reached the point where resumption of normal work could be made. He thought a return-to-work plan suggested at that time was appropriate.
Dr Mary Wyatt, occupational physician
155Dr Wyatt examined the plaintiff in early 2012 on behalf of the insurer, at which time he had been recently cleared to work normal hours and restricted duties.
156On examination, spinal movements were mildly restricted and there was mild tenderness and stiffness noted over the lower spin on palpation.
157She thought the plaintiff presented with mechanical back pain without radiological evidence of a disc prolapse.
158In her view, it was likely that the nature of the plaintiff’s duties had aggravated his back problem at times and the recent episode of October 2011 had contributed to his current back problem. There had been a work contribution aggravating his underlying back problems.
159She then thought the plaintiff’s employment continued to be a contributing factor or a cause of his current back pain. She did not believe his duties would have caused a long-term back problem.
160In her view, the return-to-work program commencing in January 2012 was reasonable, with the key issue being providing the plaintiff with tasks that allowed him to change his posture intermittently rather than sitting or standing in one position. She then saw no medical reason he should not return to work full time doing his pre-injury hours spread over three days or, if he preferred, five days.
Dr Anil Nair, orthopaedic surgeon
161Dr Nair first saw the plaintiff in January 2021. He then had available the November 2011 CT scan and the December 2014 and March 2020 MRI scans.
162The plaintiff’s current symptoms were lower back pain, with radiation into both lower extremities. The pain was present at rest and provoked by prolonged sitting, bending and lifting. The lower extremity pain was in the lateral aspect of both the right and left lower extremities and was provoked by flexion of the lumbar spine.
163The plaintiff said he first experienced lower back symptoms when working for the defendant in 1998 as a result of repetitively bending, as well as lifting. In 2002, he sought medical attention, and non-operative care was suggested in 2014. He moved to New South Wales. He consulted a sports physician, Dr Lombardo, who suggested physiotherapy.
164The plaintiff’s sitting tolerance at that time was fifteen minutes. He had difficulty with rudimentary household and selfcare tasks. As at February 2021, he was working in the family business, running a tobacconist with his wife, working about three to four hours a day performing light duties and avoiding heavy lifting.
165Prior to the injury, he worked for the defendant for fourteen years, initially as a general hand, but left when he was working as a printer. His work with the defendant from about 1987 to December 2012 included repetitive bending and lifting.
166On examination, there was some restriction of lumbar movement. Straight leg raising was positive, with 50 degrees in the right.
167He thought the plaintiff was a gentleman with a functional impediment consequent to a lumbar spine condition. He had both mechanical and radicular symptoms. There was a clear and unambiguous nexus between his current symptoms and his employment with the defendant.
168The prognosis was guarded, as the condition was anatomical and permanent and highly likely to improve beyond the current levels.
169He thought the plaintiff was unable to perform his pre-injury employment. He had significant restrictions involving both his personal and professional life.
170Analgesics were required as appropriate and if there was a worsening of symptoms, a repeat MRI scan with the possibility of steroid injections or, ultimately, lumbar surgery.
171On re-examination on Telehealth in October 2021, the plaintiff had been unemployed for about three months, as his wife had sold their business due to the pandemic.
172There were the same reported functional tolerances.
173The plaintiff continued to have debilitating mechanical and radicular symptoms and Dr Nair’s opinion remained the same in relation to all matters.
174Dr Nair noted the May 2002 CT scan revealed disc bulges. He disagreed that the plaintiff sustained a simple lumbar strain. If it was only a simple lumbar strain, this would have typically resolved over a period of days to weeks and a strain does not explain the plaintiff’s enduring symptoms. His MRI scans have confirmed the diagnosis of disc injuries at L3-4, L4-5 and L5-S1.
175The plaintiff is incapacitated to work as a printer, where he was required to perform manual duties including repetitive bending and heavy lifting. He is permanently restricted due to his lumbar disc injuries, and they would preclude him from working as a printer.
176The plaintiff required formal retraining. Permanent restrictions would be minimising bending, and lifting no greater than 5 kilograms. He was able to work full time.
Dr Peter Bentivoglio, neurosurgeon
177Dr Bentivoglio examined the plaintiff in February 2021 in Sydney. The plaintiff was then working three to four hours a day, four days a week, on light duties in the shop.
178He noted the plaintiff’s work involved a lot of heavy lifting, repetitive bending and twisting, with multiple flare ups of low back pain when he gave up the work in 2014.
179On direct questioning, the plaintiff rated his low back pain as 7 to 10 out of 10 and left leg pain at 5 out of 10. He did not have any right leg pain. He was able to sit and stand for 10 minutes without pain.
180On examination, gait was normal and there was no wasting. SLR was limited to 80 degrees on the left. There was a mild reduction of back movement. Knee reflexes revealed bilaterally depressed but present. There was no finding of radiculopathy. The plaintiff obviously still had low back pain and left neuropathic pain.
181Dr Bentivoglio diagnosed multilevel degenerative disease in the lumbar spine, initially seen in the 2014 MRI but also on the CT scan to a lesser degree in 2011. The plaintiff did not really have significant neurological compression or compromise except for a left L5 nerve root compression in the L5-S1 foramen. There was also mild L4 nerve root compression in the L3-4 lateral recess.
182He thought the prognosis for the degenerative disc disease was something that was just going to slowly but surely deteriorate with time. The plaintiff then seemed to be able to cope with working in the shop. Unfortunately, the multilevel degenerative disease in the lumbar spine, which had progressed substantially since 2011, impacted on the plaintiff’s capacity to earn by affecting his ability to earn a full living wage and will also affect the type of work he can perform, and he would only be able to do appropriate work.
183He considered the plaintiff did not need surgery but needed to perform appropriate work and probably be referred for pain management to see if cortisone injections would help.
184The plaintiff will always have to be careful with the type of work he performs and his leisure activities. He will always be required to lift no more than 5 to 10 kilograms, avoid repetitive bending and twisting or anything which puts a lot of stress and strain on his back.
185Appropriate work is the type of work he is currently doing; however, he may progress and be able to work longer hours. He is not fit to lift more than 10 kilograms, and avoid repetitive bending, twisting and anything which puts a lot of stress and strain on his back. He was looking for work but had not made any applications.
186On re-examination on Telehealth on 31 October 201, the plaintiff reported ongoing low back pain going into his left leg. He rated his low back pain as 8 out of 10 and in his left leg, 3 to 7 out of 10.
187For the past six months he had been taking Mobic on and off but had to cease taking it because it caused him stomach upset. He is now only taking intermittent Nurofen and Celebrex.
188Diagnosis remained the same. On balance, it was more likely than not that the work the plaintiff did during the period of employment contributed to the aggravation and acceleration of degenerative disease in his lumbar spine, continually running a relapsing and remitting course.
189He did not believe the plaintiff was permanently incapacitated from work. He would probably be unable to do the type of work which entailed heavy lifting or repetitive bending and twisting, and he would impose a 10-kilogram lifting limit because of the sort of work he was doing with the defendant, which was with the printing industry and colour matching. Appropriate restrictions included not lifting more than 10 kilograms, avoiding repetitive bending and twisting, commencing at 20 hours a week and slowly but surely build up from there.
Dr Shannon Paisley, psychiatrist
190Dr Paisley examined the plaintiff in February 2021.
191He thought the plaintiff’s symptoms satisfied the criteria for a diagnosis of Major Depressive Disorder. The psychological injury was secondary to his work-related back injury and had been complicated by the marriage breakdown, financial difficulties, ongoing unemployment, social isolation and persistent back pain.
192The prognosis was poor. The plaintiff remained unfit for work in any capacity by the severity of his psychological symptoms. His back injury may also restrict his capacity to work in certain roles.
Vocational evidence
193Bill Radley, psychologist, vocational assessor and job options consultant, interviewed the plaintiff online on 30 March 2021.
194He thought, on the information provided, that as a result of his lower back injury, the plaintiff should be regarded as having no current work capacity to return to his pre-injury employment.
195The plaintiff has a capacity and is currently working in part-time employment in an alternative occupation for which he has qualifications, skills and training. The work duties of this occupation do meet the medical restrictions outlined in the medical reports, and the plaintiff does not currently have a capacity for any other alternative occupation.
196The plaintiff does have some potential for occupational retraining. To gain necessary job qualifications, he would need to complete:
(i) A short TAFE industry course to gain qualifications for employment as a therapy aid or driving instructor, a minimum of about six months part time;
(ii) A vocationally directed Certificate III or Certificate IV TAFE level course, a minimum of twelve to eighteen months of part-time study to gain the necessary qualifications for employment as a trade teacher, project administrator or disability services officer.
197It is likely to take the plaintiff at least six to twelve months to complete the level of occupational retraining necessary to obtain employment in one of the suggested occupations.
198However, he believed the suggested jobs of customer service assistant, enquiry clerk or sales representative were not realistic.
199The plaintiff will have a capacity for full-time or part-time work in other occupations of a more sedentary nature if he were to complete some form of occupational retraining. He has not been offered any formal rehabilitation assistance since the injury. He would also benefit from a referral to a psychologist skilled in the treatment of mood disorders, injury adjustment and career redirection.
200Without some significant improvement in his physical capacity to engage in manual physical work activities, the plaintiff’s present level of incapacity for employment was likely to continue for the foreseeable future.
201Mr Radley provided a supplementary report in October 2021, having been provided with the plaintiff’s recent affidavit and a number of medico-legal reports.
202He thought the plaintiff has a current work capacity to work part-time alternative employment as a sales assistant and had some potential for occupational retraining. He may have some capacity for full or part-time work in occupations such as a trade teacher – printing, therapy aid, a project administrator, driving instructor or disability services officer in the future but would first need to complete an appropriate occupational retraining course. He also may benefit from a referral to a multidisciplinary pain management program and a psychologist.
203He had no reason to change his earlier opinion.
Claim documentation
204By letter dated 1 March 2012, the defendant advised the plaintiff of the termination of his entitlement to medical and like expenses from 1 May 2012. There was a further letter of 31 December 2015 in which the defendant advised the plaintiff that his entitlement to medical and like expenses was terminated from 7 January 2018.
The Defendant’s evidence
Lay evidence
205The defendant’s solicitor, Ilona Strong, swore an affidavit on 9 November 2021 detailing attempts made by her, and her lack of success, in obtaining various treatment records of the plaintiff and also his financial documents.
Medico-legal evidence
Professor Anthony Buzzard, general surgeon
206Professor Buzzard examined the plaintiff in March 2019 in relation to injury on 31 October 2011.
207The plaintiff advised that if he sat for more than five minutes, he had low back pain, and he had had it since 1998. It was worsening. The pain was situated differently to what it was the previous year, and was now more right-sided, whereas it was previously central. He was taking Mobic, about two a day, and Nurofen Plus, two to four a day, and sleeping tablets. He had problems defecating, and also sexual difficulties.
208On examination, the plaintiff moved around freely. There was full cervical movement, and he had very well-developed pectoral musculature. Right straight leg raise was positive at 40 degrees. There was full forward lumbar flexion extension to 10 degrees, full lateral flexion and rotation in each direction.
209Both arms were equally and very well developed by measurement, and the plaintiff had particularly well-developed biceps and triceps musculature. He had callusing in the palms of both hands.
210Professor Buzzard thought the plaintiff had had multiple episodes of low back pain since 1998. They represented minor soft tissue injuries possibly associated with some L4‑5 disc pathology.
211In his view, there were a number of worrying aspects in terms of the present lumbar presentation. There was positive right straight leg raising, yet the plaintiff was able to sit at right angles on the examination couch without difficulty. His claimed problem of back pain while defecating was common in prolapses. Those two signs were inconsistent, and suggested functional overlay. Next, the pattern of diminished sensation in the whole of the right lower extremity defied physical explanation and was also suggestive of a functional overlay problem.
212Professor Buzzard thought it reasonable for the plaintiff to have minor oral analgesic treatment but no other specific treatment for his back, save for a regular and self-administered exercise program taught to him by a physiotherapist. He was also concerned about the numbness the plaintiff had in his hands, but could not find any clinical evidence of carpal tunnel syndrome.
213He did not think the plaintiff had pathology in his neck, as he had a full range of movement and no significant symptoms.
214So far as employment was concerned, he noted the plaintiff was not working and was looking after his children. He drew the reader’s attention to the extremely well-developed upper limb musculature which appeared to indicate a good deal of physical activity with the upper limbs. He advised he would be grateful to have the opportunity of reviewing any other material in relation to that.
215He thought the plaintiff’s condition should be regarded as stable, and allowed a 5 per cent whole person impairment in relation to the lumbar condition, and zero impairment in relation to the cervical spine.
216He drew attention to the apparent inconsistency between the development of the plaintiff’s arm musculature, and the appearance his palms and his stated activities.
217While he allowed 5 per cent for the back, he thought that related to the first injury in 1998/1999 and it was unlikely that subsequent injuries changed that characterisation.
Medical Panel
218On 1 July 2019, a Medical Panel consisting of Dr Roderick McRae, specialist intensive care physician and specialist anaesthetist, and Associate Professor Michael Murphy, specialist neurosurgeon, found that the plaintiff had a zero per cent whole person impairment resulting from the accepted lower back discs L3-5 and back injury.
219On physical examination, the Panel noted the plaintiff had a muscular body habitus, and used a single point walking aid in his right hand. His upper and lower extremity musculature was remarkably developed, consistent with a bodybuilder’s physique. There was no appearance of obvious muscle wasting.
220The Panel agreed with Professor Buzzard’s assessment of zero impairment.
Professor Noel Dan, neurosurgeon
221The plaintiff was examined by Professor Dan in Sydney on 26 October 2020.
222The plaintiff then reported prolonged sitting induced cramping and tightness in his low back as well as pain in the region of the right hip. He said he could not bend. A new symptom was pins and needles running across the dorsum of the right foot. He reported problems with defecation, and sexual difficulties. He said for about a year he had felt an electric sensation in his neck radiating to the left shoulder.
223On examination, the plaintiff’s upper limbs were very heavily muscular. There was no wasting apparent in the lower limbs, although the musculature was a little less striking. The left quadriceps and calf were slightly smaller than the right, consistent with him being right handed. Power, reflexes, and sensation were normal. Straight leg raising was clear to 90 degrees on the left, but the plaintiff twisted and strongly resisted at 40 degrees on the right, saying it caused buttock pain. He reported significant tenderness in all of the cervical and upper thoracic paravertebral muscles as well as the lumbar musculature.
224Professor Dan believed the major component of the plaintiff’s alleged disability was psychological. The plaintiff had at most a musculoligamentous dysfunction. The disc changes were of a modest degree and were not capable of explaining his ongoing restrictions. Professor Dan believed they were incidental findings rather than findings relevant to his symptomatology.
225He was strongly of the view that no form of surgery was indicated. He thought the symptoms and physical restrictions reported at the examination were significantly excessive compared with the clinical diagnosis and clinical picture. The plaintiff had not followed the expected pathway of recovery for this diagnosis, and Professor Dan believed that was essentially because he had a primary psychological dysfunction and at the most, a very minor musculoligamentous dysfunction. He thought the plaintiff’s presenting symptoms were primarily psychological and therefore unrelated to any normal progression.
226The alleged back injury did not aggravate any pre-existing condition or cause the current one as the musculoligamentous dysfunction would at the most be limited by time. The plaintiff clearly has a significant psychiatric history and significant psychosocial dysfunction, and they are the primary cause of his dysfunction, and the dysfunctional state would have been aggravated and contributed to by his misuse of marijuana and other drugs.
227Professor Dan did not believe the claimed back injury could be attributed to the employment with the defendant and the back injury reported on 31 October 2011. He did not think that employment significantly contributed to the claimed back injury on any sustainable basis, and if it did, it would have been for a transient period of weeks or months at most.
228Any effects of a work-related aggravation have ceased. In as much as there are significant psychological components, they have overtaken and dominate any effect which could be alleged regarding a work-related aggravation.
229Because of the heavy psychological component, it is possible that the plaintiff has involuntarily aggravated his symptoms, but on his presentation, Professor Dan did not believe he could be identified as voluntarily exaggerating them.
230He thought, on physical grounds, the plaintiff would be fit for work which did not involve heavy lifting or repetitive bending, which had been the case for a considerable period and almost certainly a number of years. Because of the plaintiff’s complaint of back issues, limiting his lifting to 10 to 15 kilograms would be reasonable. Professor Dan suspected, because of the extremely well-developed upper limb and well-developed lower limb musculature, that the plaintiff was undertaking heavy exercises including weight lifting in any event.
231He believed the plaintiff would be capable of returning to work which allowed him to move from time to time and did not involve heavy lifting or frequent repetitive bending. The current incapacity was related to his underlying psychological dysfunction primarily. He had the capacity to participate in occupational retraining such as a TAFE course.
232While there was some validity to the use of long-term medication, it was difficult to see that physiotherapy had anything to contribute after this period of time, noting that the heavy musculature indicated that the plaintiff had been doing activities such as gym work which would indicate that physiotherapy was not required.
233The prognosis for the back condition, which at the most was musculoligamentous, was for a capacity to continue with minor limitations, but there was no expectation that it would deteriorate as a consequence of any alleged injury. He believed the plaintiff would be able to undertake full-time activity otherwise.
234He thought the plaintiff would be ready to start the following vocational suggestions: trade teacher, therapy aide, project administrator, and driving instructor. He would require training as a disability services officer, and would need to be qualified by the restriction of his not having to lift or otherwise support a disabled person.
235The jobs suggested in the IPAR report of 20 October 2021 were reasonable recommendations.
236Mr Radley’s initial April 2021 report appeared much more restricted than he would agree with. Professor Dan noted Mr Radley’s summary of medical opinion, and his opinion that there was no current capacity to return to pre-injury employment but that the plaintiff did have a current work capacity, and that Mr Radley listed five suitable occupations.
237Professor Dan would support an occupational rehabilitation provider may assist with appropriate job-seeking and placement as Mr Radley suggested.
238Professor Dan did not find anything in the reports which led him to change his previously expressed opinion.
Associate Professor George Mendelson, psychiatrist
239Professor Mendelson examined the plaintiff in September 2020. He considered the plaintiff was not mentally ill, and that he did not have any diagnosable mental condition.
240With respect to work capacity, there was no indication that he had any loss as a result of any diagnosable mental illness or psychiatric impairment. He was not precluded by any psychiatric factors from working within any restrictions considered appropriate as a result of his physical condition.
241On re-examination on 6 October 2021, he disagreed with Dr Paisley’s diagnosis of a Major Depressive Disorder. He thought there was no psychiatric contraindication to the plaintiff eventually working full-time.
242In a supplementary report dated 29 October 2021, he commented on the fact that the plaintiff was not precluded by his psychiatric condition from working in a number of fields suggested by Mr Radley in his October 2021 supplementary and in Ms Mutimer’s subsequent vocational assessment report of that month.
Vocational evidence
243Chloe Mutimer, occupational rehabilitation consultant, provided a vocational assessment report on behalf of IPAR in February 2021.
244At that stage, the plaintiff advised he was seeing Dr Qureshi for medical review and taking Mobic, 15 milligrams daily; Celebrex, two to four daily, and mirtazapine, one tablet in the morning.
245The plaintiff reported he was then working two to four days, four hours a day, typically four days a week, in his wife’s business.
246IPAR considered the following employment options that may be suitable for the plaintiff:
· sales assistant ($961 a week) - OPSM in Frankston and Karingal Optical
· sales representative ($1,419 a week) - Spectacle Warehouse and Beach Optical
· customer service assistant/enquiry clerk ($1,092) - Spec Savers, optometrist, and Pack and Send, couriers.
247Ms Mutimer noted the plaintiff was currently working in a sales assistant role which would greatly assist him. Given his work experience, he was likely to have gained strong communication skills and the ability to work with members of the public. He had computer skills but would likely be required to complete a Microsoft Word course.
248Ms Mutimer provided a further vocational assessment report on 27 October 2021, having been provided with Mr Radley’s vocational assessment. She was asked whether, given Mr Radley’s report, she maintained her opinion the plaintiff has a physical and psychological capacity to complete the suggested jobs.
249In light of that additional information and exploration of the roles, she confirmed the role of sales assistant was suitable for the plaintiff.
250In terms of sales representative and customer service enquiry clerk, she noted that the plaintiff is unlikely to maintain the physical sitting requirements of the role and does not possess the minimal requirements and skills required to work in these roles, hence these may be longer term goals for him.
251The role of trade teacher is likely to be suitable for the plaintiff as it is sedentary and light in nature. Sitting and standing were likely, hence offering the plaintiff the ability to alternate his posture. It was a medium-term goal, the job of trade teacher requiring Certificate IV in Training and Assessment. It would attract an income of $1,524 a week.
252The role of therapy aid was classified as medium to very heavy physical demand level. Based on that information, she thought this role may be a longer-term goal, given it was immediate in nature and could involve lifting up to 45.4 kilograms occasionally and 22.7 kilograms frequently.
253She thought the role of project administrator was likely to be physically suitable for the plaintiff as it was sedentary to light in nature.
254The role of driving instructor was also likely to be physically suitable for him. However, when driving with students, there would likely be little to no option to get out to stand or walk around mid-driving, without disrupting the session, hence the role may be a longer-term goal.
255The role of disability services officer was likely to be physically suitable for the plaintiff as it was sedentary in nature. It would require a Certificate IV in Disability and therefore would be a medium-term goal for the plaintiff. Income in that job was $41,000 to $45,000 a year.
256Otherwise, she was not able to comment on the plaintiff’s work capacity for part-time or full-time roles, with IPAR recommending medical advice was sought to comment on this.
Other documents
257The defendant provided a Supplementary Court Book in which the following were included:
· ASIC search – Ali Chaddoud
· ASIC search – Nikki Chaddoud No 3
· ABN Lookup – The Trustee for ALI CHADDOUD FAMILY TRUST – current
· ABN Lookup – The Trustee for ALI CHADDOUD FAMILY TRUST – historical
· ASIC current extract – AC Imports Pty Ltd
· ASIC current extract – Smoken Joes Aus Pty Ltd
· ASIC current extract – Hamec Design Studio Pty Ltd
· Title search – 22 Sturt Avenue, Georges Hall, New South Wales
· Title search – 459 Hume Highway, Yagoona, New South Wales
· Court Connect printout – Case ID: CI-15-01195.
Surveillance summary
258In 2011, 2019, 2020 and 2021, the plaintiff was under surveillance for 197 hours and 18 minutes. He was observed for 112 hours and 19 minutes. There was 132 minutes of film.[91]
[91]See Annexure “A”, Surveillance Summary
Overview
259It is not in issue that the plaintiff suffered a compensable injury to his lower back during the period of employment.
260The consensus of medical opinion is that he has suffered discogenic low back pain/aggravation of lumbar degenerative disease as a result of his heavy work as a printer.
261This condition was first diagnosed by his GP, Dr Andrews, in November 2002, whose view was shared by Mr Jones in 2011 and Dr Wyatt the following year. More recently, following medico-legal examiners, Dr Bentivoglio and Dr Nair, diagnosed the plaintiff’s spinal condition in similar terms.
262Professor Dan is the only examiner who considered any effects of the work aggravation had ceased. He thought the major component of the plaintiff’s alleged disability was psychological and that, at most, he had a musculoligamentous dysfunction.
263Professor Buzzard thought the multiple episodes of low back pain since 1998 represented minor soft tissue injuries possibly associated with some L4-5-disc pathology however, as at 2019, he thought minor oral analgesics and home exercises were reasonable.
Credit
264As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[92]
“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”
[92](ibid) at paragraph [12]
265While the Court must consider all the evidence when assessing seriousness,[93] the plaintiff’s credit was a significant issue in this application.
[93] Jayatilake v Toyota Motor Corporation Australia Ltd [2008] VSCA 167
266Counsel for the defendant submitted the plaintiff is not a witness of truth when he says he is sore and disabled and that he overstated his level of disability. He had “told lies in court” and had not been honest with the doctors. In those circumstances, the Court should not accept his evidence as to his level of pain and incapacity. That then invalidated opinions reliant on it, and which do not address his musculature.[94]
[94]T126; Dordev v Cowan [2006] VSCA 254
267It was submitted those doctors who accepted the plaintiff also ignored his well-defined musculature – about which his evidence was a “bunch of lies” – unlike the Medical Panel and others who took it into account.[95] It was submitted the medical opinion relied on by the plaintiff was “just a whitewash”.[96]
[95]T124
[96]T125
268Further, the plaintiff’s explanation as to why he was attending the shop premises first thing in the morning after the shop had been sold in July 2021, “just did not make sense.”[97] Arriving at 8 o’clock every morning, was not just him “staying there.” It was consistent with working in a commercial area, and doing something that was work related.[98]
[97] T132
[98]T132
269Counsel for the plaintiff submitted the plaintiff had given his evidence without exaggeration and “did not try to put anything on.” The explanation for his good physique might come from the type of exercises he was doing, which seemed quite strenuous. While it was said the plaintiff must have been doing weightlifting, “they had the dogs on him, having him under surveillance up hill and down dale, and there was no suggestion of any weightlifting or gym in the film.”[99]
[99]T144
270The main credit issue, in my view, related to the plaintiff’s attendance at the shop premises both before and after the shop had been sold. While he explained his answer to my question had been misunderstood by a gap in the Zoom, I do not accept that he was working only part time as he later explained. As counsel for the defendant submitted, it was only when the significance of the plaintiff’s concession that he was working full time at the shop became apparent that he sought to retract his answer and stated that he did not misunderstand the question.[100]
[100]T103
271It was also of some concern that the plaintiff had failed to declare any income from the shop to the ATO when he had been earning up to $600 per week in cash over about three years and failed to provide any documentation of any income earned since 2012.
272Further, I do not accept, given the times he was shown opening up the shop building later in 2021 after the shop was sold, could be explained by him renting a room there. His evidence about who was renting the room was contradictory and confusing, as was his evidence about where he was living at the time.
273Overall, the activity shown on film before and after the shop was sold is inconsistent with the plaintiff’s claimed level of pain and incapacity.
274Having not seen the plaintiff’s musculature, and given the comments of a number of examiners about his excellent physique, in all likelihood, the plaintiff continues to be engaged in some level of physical activity.
275Taking these significant matters into account, I have real concerns as to the plaintiff’s evidence as to his level of pain and disability.
276While the plaintiff has suffered lower back pain of varying degrees since at least 2002 as his GP at that time recorded,[101] I do not accept, given his level of activity shown on film, that he suffers significant, constant fluctuating back pain as he recently deposed. He does not suffer debilitating pain as he reported recently to Dr Nair. He does, however, have some limitation in his ability to bend and lift, and he is unable to engage in heavy unrestricted physical work of the type required to work as a printer.
[101]T141
Treatment
277The plaintiff has undergone conservative treatment for his back for about twenty years.
278There are records from a number of general practitioners since 2002 who have seen him for back pain. These doctors were referred to in the Form A dated January 2020 and a number provided brief reports which were relied on by the plaintiff.
279Since 2018, the plaintiff has been under the care of Dr Qureshi, who has prescribed Mobic for his back pain. The plaintiff most recently attended this GP late last year and also saw a doctor at Dutton St Medical Centre in Yagoona in September 2021.[102]
[102]T108
280In terms of specialist referral, when the plaintiff sought funding to see a neurosurgeon in 2016, the request was refused.
281In 2020, Dr Qureshi referred the plaintiff to a neurosurgeon, Mr McKechnie, who recommended a cortisone injection. While the plaintiff said his GP recommended that he not have this procedure, the doctor made no mention of this advice in his notes.[103]
[103]T109 - 13 May 2020
282The plaintiff had physiotherapy before 2011 as detailed in his early treater’s brief reports. He appears to have had two attendances in February 2014 and a later session under Medicare in 2018.
283The plaintiff continues to be prescribed Mobic and takes Nurofen, having earlier taken Endone and Celebrex.[104]
[104]T116
284The plaintiff has also had psychological treatment from Dr Bassit, psychologist, since 2020.
Loss of trade
285Counsel for the plaintiff submitted the pain and suffering consequences were demonstrated and made out through the loss of the plaintiff’s career.[105] As a result of his injury, the plaintiff has been unable to work as a printer since 2012, a trade he loved and was shared by family members.
[105] T145
286Counsel for the defendant submitted the plaintiff resigned from the defendant’s employ because he set up another company and became self-employed. He made a career decision and set up a company structure.[106]
[106] T118
287However, the plaintiff was not cross-examined in relation to this issue. It was not put to him that he left the defendant to set up his own business, not because of any back pain.[107] This was a significant omission, leaving the plaintiff’s evidence that he left the defendant because of his back pain unchallenged.[108]
[107]T119
[108]T120
288The plaintiff’s evidence in this regard was corroborated by histories to medico-legal examiners at that time – Mr Jones and Dr Wyatt in 2011/2012 – who then thought the plaintiff had a back problem due to his work duties.
289Counsel for the defendant conceded there was no practitioner who thought the plaintiff was fit to do his old trade or that he was fit for unrestricted physical employment. However, while Professor Dan also agreed the plaintiff could not do heavy lifting, counsel submitted – “well, one has to wonder when one looks at him (the plaintiff), and that it should not be accepted he cannot lift things because of his muscle tone.”[109]
[109]T123
290As counsel for the plaintiff submitted, the consensus of medical opinion is that the lumbar disc injury is such that the plaintiff is not fit to continue with work as a printer. He battled on until he resigned because he was not able to manage anything other than alternate duties. He can, on the view of some doctors, work full time in alternative duties, but not work as a printer.[110]
[110]T135
291That loss of trade is a relevant matter when assessing the pain and suffering consequences of his spinal impairment.[111]
[111] Hawkins v DHL Express (Australia) Pty Ltd [2013] VSCA 26; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181
292Taking into account all the evidence, I am satisfied that the pain and suffering consequences of the plaintiff’s present spinal impairment are “serious”, having lost his trade as a result of his lumbar pain and restrictions.
293As the plaintiff’s back pain has continued for nearly twenty years without significant improvement, these consequences are permanent.
294Accordingly, I grant leave to bring proceedings for pain and suffering damages.
Loss of earning capacity
295Having satisfied the narrative requirements, to obtain leave in relation to loss of earning capacity, the plaintiff must also establish that:
(a) at the date of the hearing, he has a loss of earning capacity of 40 per cent or more – s134AB(38)(e)(i); and also
(b) after the date of hearing, the relevant loss of earning capacity will continue permanently – s134AB(38)(e)(ii).
296The measurement of loss of earning capacity is set out in paragraph (f) which requires a comparison between:
(i) “without injury” earnings; and
(ii) “after injury” earnings.
297The former must be calculated by reference to the six-year period specified in s134AB(38)(f).
298“Without injury” earnings consist of the gross income (expressed at an annual rate) that the worker was earning or was capable of earning from personal exertion or would have earned or would have been capable of earning from personal exertion had the injury not occurred.
299It is to be calculated by reference to that part of the period within three years before and three years after the injury as most fairly reflects the worker’s earning capacity.
300The “without injury” earnings figure was around $1,000 based on the plaintiff’s earnings of $87,000 in the 2009-2010 financial year.[112]
[112]T139 - based on taxation returns
301The plaintiff carries the onus of proof in relation to economic loss and particularly in establishing satisfaction of the criteria in paragraphs (e), (f) and (g) therein.[113]
[113] Barwon Spinners Pty Ltd v Podolak (supra)
302Counsel for the defendant submitted the plaintiff had not discharged its onus in relation to his loss of earning capacity application.
303There was no documentary evidence – whether personal taxation returns or financial documents relating to Powerhouse or any other company– of the plaintiff’s earnings post 2012 to 2015 when he ceased work with the defendant in circumstances where he was in fact working.
304It seemed that Powerhouse continued to operate for longer than the nine months the plaintiff described, with ASIC documents indicating the company ceased trading on 9 October 2016. The plaintiff also did not disclose he was a director of PMA Landscaping Solutions P/L from 2012-2014.
305Although stating that Powerhouse ran at a loss and its records were with its accountant, the plaintiff provided no explanation why these documents were not produced to the Court. As counsel for the defendant submitted, it was extraordinary to suggest the plaintiff could not have obtained that material. Further, if there was a problem with taxation returns, he could have requested ATO confirmation in that regard.[114]
[114]T103
306Also, progress notes in 2015 suggest the plaintiff was working, and the whole Centrelink explanation about no entitlement because of a claim was “entirely unbelievable”.[115]
[115]T104
307The defendant’s instructor deposed to the attempts made by the defendant to obtain financial documents, and the need for various documents that had not been provided and then were the subject of a Notice to Produce.[116]
[116]T100
308Further, it was submitted, in more recent times, the plaintiff has been “dodging” his taxation obligations when he was working in full-time employment as he conceded in answer to the question posed by the Court.[117]
[117]T102
309It was also the defendant’s position the plaintiff’s current capacity is full time, with medical examiners in both camps of the view he has a capacity for suitable employment.[118] In any event, it was submitted the surveillance material would seem to suggest he is really working full time, and he “even accepted that.”[119]
[118]T102
[119] T76
310While Professor Dan thought the plaintiff is fit for work that does not involve heavy lifting, he thought the plaintiff was probably doing heavy lifting.
311Dr Nair thought the plaintiff is fit for full‑time work. Dr Bentivoglio thought he could work and may be able to progress to do longer hours, more than four days a week.
312Counsel for the plaintiff submitted the plaintiff has struggled to earn an income since he lost his trade. His taxation returns confirm he was earning $87,000 when he had to leave his trade.[120] While he has a capacity to work, and perhaps even full time, he is not likely to be able to sustain more than $1,000 a week, week in, week out.[121]
[120]T137
[121]T143
313The plaintiff did not resile from his evidence he can work an average of 30 hours and sometimes 40, but this was in a fairly sheltered environment in the shop, with just light goods like cigarettes. He also had the assistance of other employees.
314It was submitted the plaintiff did the best he could and worked the hours he could, doing light work,[122] but he had lost his trade, his wife had sold the business, he is out of a job, and he does not know where he is going to go, so he is trying to have another go at a business, but that is really just a hope and dream.[123]
[122]T145
[123] T140
315Taking all the evidence into account, I am not satisfied the plaintiff has suffered the requisite 40 per cent loss on a permanent basis.
316From 2012, the plaintiff had been certified fit for full-time alternative duties.
317There is simply no evidence before the Court of the plaintiff’s earnings from Powerhouse or any other source after he left the defendant’s employ – simply a statement that Powerhouse ran at a loss. This situation does not permit the Court to make any real comparison between without injury earnings and after injury earnings as required by the Act.
318The plaintiff’s failure to provide any financial documents since his last personal taxation return in 2011/12 is unsatisfactory. Clearly, Powerhouse was trading in the three years after he left the defendant,[124] and he gave no satisfactory explanation as to why he had not obtained its financial records from the accountant.
[124]Ceased trading 9 October 2016
319Further, I do not accept that the plaintiff’s entitlement to Centrelink would cease in mid-2015 as he was pursuing a compensation claim. There is no bar to Centrelink payments for this reason. Also, in that year, Dr Alkhouri had noted the plaintiff complained of stress from working long hours.
320The plaintiff’s evidence was vague and unclear as to what he lived on for the next few years until the shop was purchased in late 2018. From that time, while paid in cash up to $600 per week, he did not declare any of this income.
321In these circumstances, the plaintiff is unable to affirmatively prove, on the balance of probabilities, that he has sustained the relevant loss of earning capacity.[125]
[125] Barwon Spinners (supra) at paragraph [114]
322Further, I do not accept the plaintiff had only a part-time capacity to work in the shop. The true situation was, as he initially admitted, but then retracted, that he was able to work full hours in the shop doing a range of duties – albeit not heavy work – from the time of opening the shop himself early in the morning, to closing it, without needing to have any extended breaks.
323I do not accept that with his level of involvement at the shop that the plaintiff would be unable to attend work on a reliable and consistent basis because of back pain.
324The plaintiff’s attendances at the shop premises after the business was sold have not been adequately explained. I do not accept he would be arriving to open the building early in the morning if he was simply renting and living in the upstairs room. The likelihood is that he was engaged in some other activity on the premises when he was filmed.
325In any event, on the medical evidence relied on by the plaintiff, the plaintiff does have a capacity for work, with Dr Nair of the view he is able to work on a full-time basis after retraining, and Dr Bentivoglio who thought he could start at 20 hours per week and slowly build up from there in sedentary duties. Significantly both vocational assessors thought the plaintiff had a full-time capacity to work in a sedentary role such as a trade teacher – with retraining- given his work background and skills.
326Further, the drop shipping business is in its early stages, with the AC Imports P/L being registered on 4 November 2021. There is no indication at this stage what the business could potentially earn in the foreseeable future.
327Taking all these issues into account I am not satisfied the plaintiff has suffered the requisite loss on a permanent basis.
Rehabilitation and retraining
328I am also required to consider issues of retraining and rehabilitation pursuant to ss(g).
329The plaintiff has the onus to establish that with suitable retraining, he has suffered the requisite loss, having an earning capacity of 60% or less.[126]
[126] Barwon Spinners (Supra) at paragraph [31]
330In my view, the plaintiff is an intelligent man who has had experience setting up corporate structures in the past to run his insulation and other businesses, and more recently, his family trust and dropshipping business. He is not a typical, unskilled manual worker.
331The plaintiff is a man who enjoys reading, doing so for three to four hours a day. He was articulate and presented well in the witness box. His communication skills were good.
332Not surprisingly, Mr Radley thought the plaintiff could retrain.[127] In my view, the plaintiff has the capacity to participate in occupational training such as a TAFE course.
[127]T123
333While the plaintiff maintained the role of trade teacher in printing no longer existed, it was a role suggested by Mr Radley and adopted by Ms Mutimer in her vocational assessment. This role seems ideal for the plaintiff in the longer term and attracts an income in excess of $1,400 per week.
334A role such as a trade teacher would likely be suitable for the plaintiff as it is sedentary to light in nature and there is sitting and standing in this role hence offering the plaintiff the ability to alternate his posture as Ms Mutimer explained.
335I believe the plaintiff would be capable of the further study required in a TAFE course as he was able to attend the shop on a reliable consistent basis, likely working full time hours.
336As rehabilitation and retraining have something to offer the plaintiff in terms of his capacity for employment, he has not satisfied the requirements of s134AB(38)(g).
337Taking into account all the evidence, I am not satisfied the plaintiff has suffered the requisite loss of 40 per cent on a permanent basis.
338Accordingly, his leave application to bring damages for loss of earning capacity is dismissed.
Annexure “A”
Surveillance Summary
2020 Surveillance
· 13 August 2020 (Thursday) – opens up the shop at 7.00am and also unlocks the white door. He bends/squats down in order to do so. Film also shows plaintiff at 3.39pm, suggesting he is still at the store and is working full time. He agrees it is pretty much a full-time job.[128]
[128]T76
· 31 August 2020 (Monday) – opens up the shop at 6.30am, squats down to open roller door. At 7.20am, he is hanging off the shop door by his arms. At 3.48pm he is seen at a car (blue hatchback). At 5.52pm, he is seen talking to a customer. At 6.01pm, he leaves and heads off in his car. At 7.15pm, he is seen returning to the store. At 8.04pm, he is dusting the door mat against a bin. At 8.35pm, he closes the store and locks up, able to squat down without difficulty, twist and turn his back while dusting the door mat. He leaves in the blue hatchback.
· 2 September 2020 (Wednesday) at 6.30am, opens up the shop.
· 3 September 2020 (Thursday), at 6.28am, opens up the shop.
· 3 September 2020 (Thursday) at 3.48pm, he is working inside the shop and at 6.55pm he is sweeping outside the shop.
· 7 December 2020 (Monday) at 2.22pm, opens up the shop – footage of him actually working in the shop.
· 8 December 2020 (Tuesday) at 6.48am, opens up the shop.
· 9 December 2020 (Wednesday) at 6.48am, opens up the shop and at 6.49am, opens up the white security door – next door.
2021 Surveillance
· 26 April 2021 (Monday) at 7.05am, arrives at the white security door with his backpack.
· 27 April 2021 (Tuesday) at 7:04am, arrives and opens up the shop. At 7.05am, opens up the white security door.
· 29 April 2021 (Thursday) at 7.03am, arrives and unlocks the shop. At 07.04am unlocks the white security door. At 8.29am, is seen talking outside the shop on a mobile phone earpiece and smoking. At 9.45am, gives something to a person in a silver Toyota 4WD and returns to the shop.
· 8 October 2021 (Friday) at 7.54am, arrives with backpack and carrying a bag. The plaintiff denies that the bag is heavy – just has some clothes in it. Opens up the white security door next to the smoke shop. Does not open up the smoke shop.
· 14 October 2021 (Thursday) at 7.49am, arrives in wife’s Holden with two bags (clothes again) and opens up the white security door.
· 15 October 2021 (Friday) at 7.40am, arrives with two bags and opens up the white security door.
· 25 October 2021 (Monday) at 7.45am, arrives – comes and goes and unlocks the white door at 12.42pm.
· 26 October 2021 (Tuesday) at 7.40am, arrives with two bags, comes and goes and returns at 1.00pm carrying a white plastic bag.
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