Charalambous, Stratis v Lu Simon Builders Pty Ltd and VWA

[2009] VCC 1680

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT MELBOURNE
CIVIL DIVISION

SERIOUS INJURY

Case No. CI-08-03681

STRATIS CHARALAMBOUS	Plaintiff
v
LU SIMON BUILDERS PTY LTD &	Defendants
VICTORIAN WORKCOVER AUTHORITY

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JUDGE:	HIS HONOUR JUDGE LACAVA
WHERE HELD:	Melbourne
DATE OF HEARING:	21-23 September 2009
DATE OF JUDGMENT:	18 December 2009
CASE MAY BE CITED AS:	Charalambous, Stratis v Lu Simon Builders Pty Ltd & VWA
MEDIUM NEUTRAL CITATION:	[2009] VCC 1680

REASONS FOR JUDGMENT

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Catchwords: Serious Injury Application – aggregation of a number of injuries from various incidents – impermissibility of aggregation – video evidence – consequences not very considerable or more than significant and marked.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R W McGarvie SC with	Maurice Blackburn Lawyers
Mr N D Horner
For the Defendants	Mr C J Blanden SC with	Herbert Geer
Ms H Donmez
HIS HONOUR:

1 This is an application which relies on part (a) of the definition of “serious injury” in sub-s.(37) of s.134AB of the Accident Compensation Act 1985 (“the Act”), that is permanent serious impairment or loss of a body function. The application at first also relied upon part (c) of the definition of serious injury but that was later withdrawn.[1]

[1]             Transcript (“T”) 56

2     The body function relied upon is the lumbar spine.

3 The claim by the plaintiff instituted by Originating Motion dated 22 August 2008 seeks leave from the court pursuant to sub-s.(16)(b) of s.134AB of the Act to commence a proceeding which will claim damages for pain and suffering and loss of earning capacity. The particulars of injury pleaded are:

(a)	injury to the lower back;
(b)	aggravation of disc degeneration of the lumbar spine;
(c)	foraminal encroachment by disc material in the lumbar spine area;
(d)	referred symptoms and/or sensory disturbance and/or radiculopathy to the legs;
(e)	anxiety and depression.

4 Mr R W McGarvie SC with Mr N D Horner of counsel appeared on behalf

of the plaintiff. Mr S J Blanden with Ms H Donmez of counsel appeared on
behalf of the defendants.

5     The following evidence was adduced during the hearing:

• The plaintiff swore two affidavits and gave sworn evidence and was cross- examined. The plaintiff’s first affidavit was sworn on 30 January 2008.[2] The second affidavit was sworn on 20 July 2009.[3]

• The plaintiff tendered the following evidence – the Plaintiff’s Court Book (“PCB”) pp.20-122 inclusive (Exhibit A) and pp.220-222 from the Defendants’ Court Book being the medical report from Dr Lefkovitz (Exhibit B) and pp.131-132 of the Defendants’ Court Book being the worker’s claim form (Exhibit C) and p.152 in the Defendants’ Court Book being an accident report form dated 12 November 2002 (Exhibit D).

• The defendants tendered the following evidence – the Defendants’ Court Book pages 157-225 inclusive and 316-322 inclusive and 354-374 inclusive (Exhibit 1) and a video depicting the movements of the plaintiff on 21 October 2005 and 25 October 2005 and 1 November 2005 (Exhibit 2) and a video depicting the movements of the plaintiff on 1 November 2005 (Exhibit 3) and a further video depicting the movements of the plaintiff on 28 May 2008 and 3 June 2008 (Exhibit 4) and a further video depicting the movements of the plaintiff on 5 July 2009 and 7 July 2009 and 8 July 2009 (Exhibit 5).

[2]             PCB 20

[3]             PCB 28A

6 In giving consideration to this application I have considered all of the

evidence adduced by the respective parties.

7 As can be seen from the amended Originating Motion dated 21 September

2009, the plaintiff seeks leave to bring proceedings for personal injuries
arising:

“Out of or in the course of his employment on 8 November 2002, or 7 December 2004, or February 2005, or by way of gradual process over time due to the nature of his employment with the defendant during the period November 1999 to September 2005”.

8 As the evidence unfolded it became clear that the plaintiff claimed to have been injured during the course of his work with the firstnamed defendant in three separate incidents. The first incident is said to have occurred on or about 8 November 2002 when the plaintiff claimed to have been injured whilst lifting a wheelie bin into a skip.[4] After that incident the plaintiff saw his local general practitioner, Dr Khoo, at the Eramosa Clinic. He returned to work the following day. He did not re-attend on the general practitioner for any injury arising from this incident and an accident report form was completed.

[4]             T 8

9 The second incident is said to have occurred on or about 7 December 2004 whilst the plaintiff was holding a 20 kilogram bag of cement which he was disbursing around a shed. He claims that during the course of this work his back seized up and he suffered from pain. He was taken from work in an ambulance to the Alfred Hospital where he was treated and observed and released after a couple of hours. He returned to work within four days and worked until the Christmas break in 2004. Again, a claim for compensation was completed. The plaintiff returned to work after the 2004 Christmas break without seeing his general practitioner.[5]

[5]             T 14

10 The third incident is said to have occurred on or about 23 February 2005

whilst the plaintiff was shovelling crushed rock around which he was moving around a building in a wheelie bin. A device called a “bin lifter” apparently malfunctioned and the plaintiff took the strain of the weight of the wheelie bin containing the crushed rock and he injured his back. He visited his general practitioner, Dr Ann Warr, and had time off work and was prescribed anti- inflammatories and physiotherapy. There was some slight improvement and after three months he returned to work on light duties in April 2005. He did road traffic control work and work in the canteen which he described as “peggy duties”.[6] He continued working alternative duties until September 2005 when he stopped work and has not worked since. He claims to have suffered from continuing disability in the form of a severe low back pain and that he stopped work on the advice of his doctors.[7]

[6]             T 16

[7]             T 16-17

11 Mr Blanden, on behalf of the defendants, argues that the plaintiff cannot

aggregate the injuries said to have occurred in each of the separate incidents. He relies upon the principles in Petkovski v Galletti (1994) 1 VR 436. Mr Blanden contends that the real issue in this application is whether or not what occurred in the third incident which occurred on or about 23 February 2005 amounted to an aggravation of a pre-existing low back injury or problem which the plaintiff had and, assuming it was, whether or not that aggravation has consequences significant enough for the aggravation or injury which occurred in the third incident to be regarded as a “serious injury” within the provisions of the Act.

12 Put simply the defendants’ case is, when all the evidence is looked at

carefully, the consequences arising from the third incident are not sufficient for me to find that the injury or aggravation which occurred in the third incident is of itself a serious injury.

13 In submissions I took Mr McGarvie to agree with the approach submitted

by Mr Blanden save that he naturally contends on behalf of the plaintiff that on all of the evidence the plaintiff has made out a case for serious injury within the meaning of the Act and that he should be given leave to issue proceedings for pain and suffering and loss or earning capacity.[8]

14 In summary form the medical evidence is to the effect that the plaintiff

does have what might be described as a “light work back”. The plaintiff says that the consequences for him from that back injury are such that his injury should be regarded by me as a serious injury bearing in mind that one consequence is said to be that the plaintiff is totally disabled from any form of employment.

15 The defendant, on the other hand, has led evidence of video surveillance

of the plaintiff which is lengthy and which covers three different periods from 2005 until 2009. It argues that the videos, when viewed as a whole are relevant in assessing the nature and extent of the plaintiff’s disability and in summary form the defendant argues that the videos clearly show that the plaintiff has no restriction in movement at all from any lower back related problem.

16 The defendant further contends that the videos show the plaintiff capable

of a range of movement and activity wholly inconsistent with a history given to each of a number of doctors by him when he consulted with them and, therefore, the plaintiff should not be viewed as a witness of truth and, where the doctors’ opinions are based upon the history given by the plaintiff, those opinions should be given little weight.

17 It was in that context that this case proceeded.

[8]             See transcript generally and the discussion at pp.138-142.

The Statutory Scheme

18 The application is brought under the definition of “serious injury” contained

in subsection (37)(a) of section 134AB of the Act which requires the plaintiff to prove that he has suffered a “permanent serious impairment or loss of a body function”.

19 The relevant considerations which apply to such an application are as

follows:

(a)	The plaintiff must prove that he has suffered a compensable injury, that is, an injury which he suffered arising out of the course of his employment on or after 20 October 1999.[9]
(b)	The injury and the impairment must be permanent, that is, permanent in the sense that it is “likely to last for the foreseeable future”.[10]
(c)	The plaintiff bears the burden of proof to be determined upon the balance of probabilities, and in addition to the general burden imposed by subsections (19)(a) and subsection (19)(b). Subsection (38)(e) imposes a specific burden on the plaintiff in relation to a claim for loss of earning capacity.
(d)	Subsection (38)(c) provides that the impairment must have consequences in relation to pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may fairly be described as being more than “significant” or “marked”, and as being at least “very considerable”.
(e)	Subsection (38)(h) provides that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purpose of paragraph (c) of the definition of “serious injury” and not otherwise.
(f)	Subsection (38)(e) provides that in a claim for loss of earning capacity, that such loss must be to the extent of 40 per cent or more both at the date of hearing and permanently.
(g)	Subsection (38)(f) and (g) provide the formula to be applied by which a claim for loss of earning capacity is to be determined. For the purposes of those sub-sections “suitable employment” is defined in section 5 of the Act to mean “employment in work for which the worker is currently suited (whether or not that work is available) etc etc”.
(h)	Subsection (38)(j) provides that the assessment of serious injury is to be made at the time of the hearing of the application.

[9] S.134AB(1), and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph 11

[10] Barwon Spinners, at paragraph 33

(i)  Subsection (38)(b) provides that the consequences of an injury and impairment in terms of pain and suffering and loss of earning capacity are to be considered separately. Furthermore, if a plaintiff is successful in proving loss of earning capacity it follows, without the necessity to determine the consequences to that plaintiff in terms of pain and suffering, that the plaintiff is entitled to leave to bring a proceeding for pain and suffering in any event.11

(j)

In conformity with Barwon Spinners, I must identify the injury and the impairment said to be produced in consequence of the injury; whether the impairment is permanent, that is, likely to last for the foreseeable future; and whether the consequences for the plaintiff are such as to satisfy the “very considerable” test contained in subsection (38)(c). I have applied the principles set forth therein in reaching my conclusions in this application.

(k)

In an application where it is alleged that the plaintiff had a pre-existing condition which arose prior to 20 October 1999, I must, in conformity with Barwon Spinners, identify the injury and impairment arising after 20 October 1999, and I must then determine the consequences of that injury and impairment by comparing the plaintiff’s condition before and after that injury: see Petkovski v Galletti.[12]

[12] (1994) 1 VR 436

19 I am required by section 134AE to give detailed reasons which are as extensive

and complete as the Court would give on the trial of an action and in doing so to disclose my pathway of reasoning in dealing with the evidence and the issues raised by the application.

Affidavit evidence

20 The plaintiff was born on 9 November 1958 and is now 51 years of age. He lives at Pearcedale with his three young sons. He is a sole parent and carer for his three children. He is in receipt of a single parent’s pension which he has been receiving since around early 2007[13]. He completed Year 10 at school and after commencing Year 11 he left early in that year and undertook a panel beating apprenticeship before working as a panel beater for about nine or ten years. Thereafter he worked as a delivery van driver and a security guard and an armoured guard.

[13]           T41

21 The plaintiff commenced work with the first named defendant in November 1999. He generally worked 40 to 48 hours per week with frequent overtime but his usual shift was about eight hours per week. He worked as a builder’s labourer. His first work was on jackhammer but thereafter he did other duties, most of which required heavy lifting and the work was repetitive. Part of the plaintiff’s work with the first named defendant required him to empty large wheelie bins into a larger skip. The wheelie bins would be filled with all sorts of building material and debris and they were very heavy. He says that he would have to lift and tip between 10 and 20 such wheelie bins in any given working day. The plaintiff said that he was initially fit with his work and was able to cope with the work. He was a well developed man who had spent a lot of time doing body building in his past.

22 On 8 November 2002 the plaintiff was lifting a wheelie bin with the assistance of a labourer when he was required to take the weight of the wheelie bin and he felt a sudden sharp pain in his lower back. He says that the pain seemed to pass from his lower back into his right buttock and was severe. The injury occurred on a Friday or Saturday and he rested over the weekend, however the pain did not go away and the following Monday he attended upon his general practitioner, Dr Khoo, at the Eramosa Road Clinic in Somerville. Dr Khoo told the plaintiff that he had probably strained his back and that some physiotherapy would help. He did not attend for any physiotherapy and returned to work the following day or shortly thereafter.

23 The second incident occurred on 7 December 2004 whilst the plaintiff was emptying cement around the perimeter of a shed from a large bag of cement. He says that his back seized up and he felt a flare-up of very severe low back pain which was again associated with radiation of pain into the right buttock. An ambulance was called and the plaintiff was taken to the Alfred Hospital where he was observed but he returned to work four days later. A claim for compensation was completed on 21 December 2004. He did not see his general practitioner on this occasion.

24 On or about 23 February 2005 the plaintiff was performing duties shovelling a large amount of crushed rock around a building. He was moving the crushed rock around in a wheelie bin and because of a malfunction in the wheelie bin lifter he again hurt his back when he took the weight of the wheelie bin. This is the incident that is most serious of the three incidents that the plaintiff suffered. The plaintiff says that he was off work for approximately three months initially following this incident. He consulted with his general practitioner and was given anti-inflammatories and he had some physiotherapy. There was slight improvement and after three months he returned to work on light duties. He says that he was given road traffic control duties to do but this changed shortly thereafter and he was carrying out cleaning duties in the canteen and kitchen area and wiping down tables. He says that he was eventually advised by his general practitioner that he should stop work which he did, in September 2005, and he has not worked since. In his first affidavit the plaintiff says, at paragraph 20, that he continued with physiotherapy for some time which he received from one Allan Norman in Dandenong. However, he was forced to stop seeing Dr Allan Norman when his Worker’s Compensation payments were stopped by the second named defendant on or about 14 November 2005. Thereafter the plaintiff said he was unable to continue to pay for the physiotherapy he was receiving. The plaintiff has also been seen by Dr D’Urso, a neurosurgeon, but the treatment has been conservative. He takes digesics and Panadol for pain and does routine floor exercises.

25 In his first affidavit the plaintiff deposes to having ongoing and constant pain in the low back that radiates into the legs, more so on the right side. He says that he finds it impossible to avoid the pain which seems to be brought on by sitting or standing for long periods or for walking for about 20 minutes which he says increases the pain dramatically. In his first affidavit he said that he could still carry out most household tasks but he has to be careful when doing so. He says that he is no longer as active as he once was, claiming to have been very fit and strong and he enjoyed the heavy work. He says his weight has dropped from 115 kilograms prior to the injury to about 100 kilograms. He says he does not eat as much and can no longer keep a disciplined fitness regime. In his first affidavit he says, at paragraph 26:

“I am still able to drive a car. I own a large four wheel drive vehicle which I find difficult to drive as it is heavy to steer but I cannot afford to change to another vehicle so I will only drive that vehicle on days when I feel up to it.”

26 That is a paragraph that took on some significance in the context of the case with the defendant producing a number of videos depicting the plaintiff driving his large four wheel drive Toyota vehicle. In those videos the plaintiff appears to have little difficulty driving the Toyota vehicle including reversing it with a boat and trailer attached. Further, in another of the videos the plaintiff is seen driving the vehicle with boat and trailer attached from his home in Pearcedale to where the boat is launched at the Sorrento boat ramp, about a one hour drive.

27 The plaintiff says that he is depressed and is taking Avanza to treat his

depression. He further deposed, at paragraph 28 in his first affidavit:

“I have owned a boat for many years and enjoyed ocean fishing from the boat. I still have the boat but have not used it for many months as the motor seized in early 2007 and I’m unable to afford repairs to it. Until the motor seized I was able to use the boat occasionally although did not get out as and when I wanted to due to back pain. If I chose my days I was still able to use the boat and found that this also gave me some relief from the feelings of anxiety and depression that I experienced and still experience.”

28 Again, this paragraph in the plaintiff’s first affidavit took on significance in the case in the context of the video evidence where at least two of the videos depicted the plaintiff enjoying boating activities with his children apparently unaffected by his low back injury.

29 In his second affidavit the plaintiff claims to be still suffering from constant base level of pain in the low back and this has flared up by activity. He says that he also has a numb feeling in the back of the right thigh. In paragraph 4 of the second affidavit he deposes:

“I find the task involving any significant bending and twisting motions are the worst and will almost always cause a significant increase in back pain and also bring on pain in the left and right groin areas.”

He went on:

“Sitting or standing in the one spot for more than about 15 or so

minutes at a time will cause increased back pain.”

30 It is in fact the activity of significant bending and twisting motions which the plaintiff is depicted in videos as doing to which I shall later refer.

31 Also in the second affidavit the plaintiff said that he purchased a new motor for his boat from superannuation monies and “I will still occasionally take my children (3 boys) out on the boat to go fishing”. He says that he takes six digesic tablets each day and uses Nurofen for pain control. He continues to take anti- depressant medication and he continues to see his general practitioner, Dr Ann Warr.

Medical evidence

32 There are a number of reports from physiotherapists contained in the Plaintiff’s Court Book. It is not necessary for me to set them all out in a great deal of detail, however, there is a detailed report from Cameron Dunkerley, physiotherapist, dated 19 July 2007.[14] Mr Dunkerley reports that the plaintiff presented at his clinic on 23 March 2005 approximately one month after the third incident. This was on a referral from Dr Bill Warr, and the referral said that the plaintiff suffered from “acute low back pain”. After carrying out an examination of the plaintiff on that occasion, Mr Dunkerley provided a provisional diagnosis of “chronic lumbar dysfunction with the main problem being associated with an initial injury at the right L5/S1 facet joint”. The report of Mr Dunkerley says that the plaintiff conveyed to him that he (the plaintiff) had a lot of stress in his life for which he was taking Avanza. Mr Dunkerley makes it clear in his report that after giving the plaintiff initial treatment he thought that the plaintiff would make a “full recovery and as such have capacity to return to work”.[15]

[14]           PCB 32

[15]           PCB 34

33 The plaintiff continued to receive physiotherapy treatment from Mr Dunkerley’s clinic until September 2005 at which time he appears to have changed to another physiotherapist, Mr Allen Norman, located in Dandenong. In his report, Mr Norman refers to sighting two CT scans taken of the plaintiff on 24 February 2005 (the day after the third incident) and 12 May 2005 which indicated problems in the L4/5/S1 facet joint arthropathy with moderate reduction in height of L5 on S1. The CT scan of 12 May 2005 showed at L2/L3 minimal degenerative change at the end plate margins and at L3/4 slight bulging of disc and slight hypertrophy of ligamenta flava and at L5/S1 prominent degenerative change at L5/S1.

34 Apart from prescribing analgesics and physiotherapy, the plaintiff’s general practitioner referred him for treatment by Mr Paul D’Urso, neurosurgeon. Mr D’Urso has provided three reports which went into evidence. The first is dated 15 November 2005, followed by a second report on 14 December 2006 and a final report on 7 March 2007.[16] On presentation to Mr D’Urso on 8 November 2005 the plaintiff described pain which radiates from his back into his right buttock associated with parathesia in the region. He also had pain radiating bilaterally into his testicles. In his first report, Mr D’Urso opined that the plaintiff was “symptomatic from his degenerative spondylosis”. He said that he would like to obtain an MRI scan to ensure that the plaintiff had not got any nerve root compression.

[16]           PCB 44-51

35 In a report to the second named defendant on 14 December 2006[17] Mr D’Urso
then had available to him an MRI scan which had been taken on 20 December

2005.  He said:

“This revealed advance degenerative change at the L5/S1 level with disc base narrowing, mobic end plate changes and foraminal stenosis of the L5 nerve roots. There was hyperlordosis present of the lumbar spine. There was some mild degenerative spondylosis at the L3-4 level causing mild central stenosis made worse by broad-based disc prolapse and facet joint degeneration.”

[17]           PCB 46

36 Mr D’Urso reviewed the plaintiff on 30 January 2006 after obtaining the MRI scan. At that time the plaintiff continued to complain of back pain and Mr D’Urso recommended maintenance of core stability physiotherapy with use of anti- inflammatory medication and he told the plaintiff that he should avoid heavy manual labour.

“I suggested that permanent restriction should be placed on his ability to lift weight which would be limited to 20 kilograms. I suggested that he should not bend, lift or twist repetitively. He should not lift from below the knee or above the shoulder. I have suggested that Stratis should have the ability to ambulate freely in the workplace and should not be required to sit or stand for periods in excess of one hour continuously.”

37 As to the plaintiff’s capacity for work, Mr D’Urso in 2006 opined:

“Currently, Stratis has no capacity to perform heavy manual labour. He has a significant lumbar spinal degenerative condition which would limit his ability to perform more arduous manual labour. I would recommend that he be placed into a lighter capacity in the future. He may require significant vocational assistance and retraining to achieve the skills necessary to work in a light duties capacity. I have mentioned in the text of this report my recommendations regarding work restrictions. I would consider Stratis permanently incapacitated for heavy manual work. He does, however, have ongoing work capacity for light duties. Substantial vocational assistance and retraining maybe required to find suitable employment within restrictions mentioned in the text of this report.”

38 As was pointed out by Mr Blanden in final submissions, Mr D’Urso is the only treating specialist to have treated the plaintiff and the plaintiff has not returned to Mr D’Urso for any treatment since January 2006. Mr. Blanden submitted that fact alone bespeaks someone who has not suffered a serious injury within the meaning of the Act.

39 The plaintiff has, however, continued to attend upon his general practitioner, Dr Warr.[18] A detailed report from Dr Warr sets out the history of attendances of the plaintiff at the Eramosa Clinic. Dr Ann Warr has been treating the plaintiff since 2 October 2006. In her report she says, inter alia:

“He has pain in his lower back and pain in the right leg. He develops testicular pain if he bends forward. His pain is aggravated by turning, bending and repetitive lifting of weights greater than 10 kilograms. He is able to use his arms which are strong as long as he does not bend at the waist. I noticed that he often walks with a limp and favours his right leg, walking with antalgic gait. He sits during the consultation but frequently changes position due to discomfort and sometimes he will stand up.”

[18]           PCB 52

40 In a further report in July 2009 Dr Warr says inter alia:

“He states he has learned to live with the pain (that is, he has pain most of the day, and with most movement of his lower back and for the sake of his children he tries to do as much as possible with them so that they don’t consider him a ‘wimp’. He is limited in the activities which a normal father would do, such as playing football, going for a run et cetera and his only pleasure is the occasional fishing trip with his sons because his boys can help with the boat and winching the boat only requires the upper body. He continues Avanza as an anti-depressant but it is only marginally helpful.”

41 Examination in July 2009 revealed flexion to 30 degrees maximum limited by pain which radiates to the right groin, extension of five degrees limited by pain, lateral flexion limited to both sides 25 degrees and straight leg raising on the right was limited to 20 degrees. Reflexes were active on the leg but on the right leg the knee jerk was slightly reduced and the ankle jerk almost absent. Plantar reflex was normal and down going.

42 The plaintiff was medically examined by Mr Stanley O’Loughlin, and orthopaedic surgeon, on 27 March 2007.[19] The plaintiff told Mr O’Loughlin that he has low back pain which is sometimes absent but develops “with any type of activity and also with prolonged standing, prolonged sitting, driving et cetera”.[20] Examination at that time revealed the following: forward flexion 40 degrees, extension 10 degrees, lateral flexion to both sides 20 degrees, rotation to both sides 20 degrees, straight leg raising was 70 degrees on both sides. Mr O’Loughlin found “there was no neurological abnormality in both lower limbs hence no radiculopathy”.[21] Mr O’Loughlin’s diagnosis and opinion in summary was that the plaintiff suffers from a light work back.[22]

[19]           PCB 55

[20]           PCB 56

[21]           PCB 57

[22]           PCB 58-59

43 The plaintiff was medically examined by Mr Kevin King for medico-legal purposes arranged by his solicitors. Mr King saw the plaintiff in early June 2009 and provided a report dated 23 June 2009. Mr King saw the plaintiff on or about 23 June 2009 which was about 12-14 days before the video depicting the plaintiff’s movements was taken which I admitted into evidence as Exhibit 5. When the plaintiff was examined by Mr King he showed “marked limitation of all thoracolumbar spinal movement by pain and spasm approximately one quarter of the normal range of all movements were present”. The plaintiff complained of constant aching lumbar sacral back pain with severe periodic flare-ups during the day and night with any sort of exertion. Dr King concluded that the plaintiff was totally and permanently disabled from returning to any heavy manual job and that he was chronically and severely disabled from returning to any sort of physical work.[23]

[23]           PCB 77

44 The plaintiff was also examined for medico-legal purposes by Associate Professor Maurice Wallin, who has provided a very lengthy report dated 9 July 2009.[24] The date of the report is significant because the plaintiff presented for examination the day after he was filmed by the defendant engaging in activities with his sons on the beach which required a lot of repetitive bending, twisting and digging, which I shall refer to later. In the report, which is too lengthy to refer to in full, Associate Professor Wallin says, inter alia:

“He indicated that if he has to bend over minimally at home in order to mop a floor, it does increase his level of pain, and he also indicated that when engaging in personal care at home, if he bends over at all to clean his face, he experiences increased significant pain. He stated that if he tries to engage in gardening activities, he can only do ten minutes of work without experiencing very significant increased pain. He stated that if he does start to engage in some form of light gardening work which does involve some bending, the pain also throbs from his low back up to his neck level.”[25]

[24]           PCB 79

[25]           PCB 84-85

45 Dr Wallin’s report goes on to describe a number of activities which the plaintiff told him that he could not perform. These included difficulties with toileting and whilst dressing himself, putting on trousers and socks. He also told Dr Wallin he could not wear laced up shoes but only slip on shoes.[26]

[26]           PCB 85

46 When the plaintiff was examined by Associate Professor Wallin he found, inter

alia:

“Mobility assessment of your client’s back using a single inclinometer revealed flexion to be restricted to 20 degrees by significant stiffness and the onset of pain, extension was restricted to 10 degrees by stiffness and the onset of pain, lateral flexion to the left and right was restricted to 20 degrees, giving rise to very significant pain and rotation of his back was restricted to approximately 5 degrees due to significant stiffness and the onset of pain.”

47 Associate Professor Wallin opined that the plaintiff is unfit for heavy manual work and he added:

“It is to be noted that he can only sit for a short period of time, he can only stand for a short period of time, he cannot bend his back other than minimally, nor can he extend it other than minimally without the onset of pain, he cannot rotate the back and he cannot drive for other than a short period of time without stopping the car.”

48 The defendant had the plaintiff medically examined on a number of occasions by Dr Robert Lefkovits. In his report of 11 July 2008 Dr Lefkovits opines:

“On examination, he has restricted back movements but no evidence of radiculopathy. MRI confirms multilevel disc degenerative disease in the lumbar spine and I would accept that the worker has suffered aggravation of his constitutionally based degenerative disc disease at multiple levels in the lumbar spine. His condition has become entrenched and chronic and he has developed significant psychological sequelae requiring formal treatment. He is unlikely to make any significant recovery and therefore will not get back to pre-injury duties.”[27]

[27]           Defendant’s Court Book (“DCB”) 222

49 There are a number of references in reports from various practitioners, including

psychiatrists that have assessed the plaintiff to the effect that he is suffering from
ongoing depression.[28]

[28]           PCB 30-33, 46, 65-66, 115.

50 After some argument I admitted into evidence a report from Flexi Personnel prepared by one Kaye Angel, who describes herself as a “human resource consultant” with a broad knowledge of “OH&S and WorkCover issues”. Ms Angel is not a doctor nor does she have qualifications in occupational therapy.[29] In admitting the report I indicated that the real question would be as to what weight was to be given to the report given that Ms Angel has relied almost entirely upon the medical reports that have gone into evidence and hence the history given by the plaintiff to the various doctors he has consulted. In her report Ms Angel says, inter alia:

“When I consider all the negative factors together, Stratis has very limited prospects of finding suitable employment or being retrained to any alternative vocation, full-time or part-time, which would be economically self-sustaining. From reading his medical reports and interviewing Stratis I do not believe that he has any transferrable skills that he is capable of performing. Stratis’s limited work capacity would not be at a level that would make him an attractive option for an employer to hiring him for full-time or part-time work.”[30]

[29]           PCB 100

[30]           PCB 106

51 As will be seen from matters which I will set out later, I do not act upon this report. I have concluded that the plaintiff’s level of disability is not as extreme as has been put by him, either in his affidavits or in evidence before me, or in the history that he has given to any of the doctors.

The video evidence

52 It is necessary to consider in some detail the video evidence that was tendered by the defendant in this proceeding being Exhibits 2-5 inclusive. That is because the video evidence clearly brings into question the level of disability of which the plaintiff complains and the plaintiff’s credibility.

53 The first video depicts the plaintiff’s movements on 21 October 2005. At about 12pm the plaintiff can be seen alighting from his four wheel drive motor vehicle and entering a building. He appears to be walking normally and without pain. In the same exhibit the plaintiff is then filmed on 25 October 2005 commencing at about 11.18am. The plaintiff can be seen reversing his boat into the driveway of his house and then getting up on a trailer and reaching into the boat carrying two eskies from the boat. Thereafter for a period in excess of a half an hour the plaintiff can be seen using a pressure gun and proceeding to wash his boat and the underside of his car.

54 When washing the boat he is seen to climb onto the boat trailer and then when off the boat trailer he is seen repeatedly bending to ground level washing up under the wheel arch and under the boat. He raises pressure gun above his shoulders to wash the deck area holding the gun at all angles.

55 When washing under the car the plaintiff bends forward with what appears to be a full range of movement with his hands holding the pressure gun at or very near ground level as he angles the gun in the direction up and under the wheel arches of the car. At times the plaintiff’s head is almost down to below waist level as he stretched to get the best possible angle such is the level of forward flexion that the plaintiff is able to achieve at the time when the video is taken.

56 On 1 November 2005 the plaintiff was again recorded by video. He can be seen boating with his sons. The plaintiff appears relaxed with his three sons launching the boat and then when they have all returned apparently from fishing, bending and holding the boat. He is seen standing in the one spot for a very long period of time whilst awaiting his turn to remove the boat from the water on the boat ramp. Much of the time covered by the video shows the plaintiff just standing on the jetty in the one position. He is not in any apparent pain.

57 When it comes the turn of the plaintiff to remove the boat from the water, his sons take the boat whilst the plaintiff goes and fetches the Toyota motor vehicle and boat trailer which the plaintiff is seen to reverse onto the boat ramp leaning out of the motor vehicle with the door open for this purpose. At 3.21pm the plaintiff reverses the boat trailer onto the boat ramp and then, having alighted from the vehicle, walks across the top of the boat trailer, balancing correctly, and then connects a wire to the front of the boat and winches the boat singlehandedly from the water without difficulty. The plaintiff is seen working hard winding the winch on the boat trailer. The family then depart the boat ramp and drive off with the boat.

58 At 3.49pm the boat and trailer pull off the road. There appears to be a problem with one of the wheels, apparently the tyre was flat. The plaintiff is seen bending over the boat trailer and squatting, attending to the wheel on the trailer. He is not in any apparent pain and his movement unaffected. He bends over and stands up apparently unaffected, he moves off at 3.53pm. At 4.02pm the car and trailer are seen to leave the road again, apparently because there was a repeat of the trouble with the wheel. After examination, again without difficulty, the plaintiff moves on.

59 I admitted into evidence the videos taken on 21 October, 25 October and 1 November as Exhibit 2, and a further video taken on 1 November as Exhibit 3.

60 Exhibit 4 became video evidence of movements of the plaintiff on 28 May 2008 and 3 June 2008. In this video the plaintiff can be seen attending with his children at the Pearcedale Primary School. The video commences with the plaintiff speaking with people in a four wheel drive. He appears fit and well. At 1.30pm he is seen walking to the school with the children and then playing ball on an oval as well as kicking a football. He bends over to pick up the ball and appears to kick the ball raising his leg high as he follows through on the kick. He is depicted marking the football. He is then depicted walking home with his children carrying the schoolbag.

61 On 3 June 2008 the video shows the plaintiff talking to somebody in a car at 12.46. He is bending over speaking to the person who was in the driver’s position with the plaintiff standing outside the car. He is in no sign of discomfort and bends over to have the discussion. Then he is depicted picking up rubbish from his nature strip. At no time does he appear to be in any discomfort.

62 Exhibit 5 is the most compelling of the videos. On 7 July 2009 the plaintiff is filmed walking with his son in Little Bourke Street in the city. At 12.05pm he can be seen as he lifts his son off the ground with one hand and carries him under his right arm. He did this without apparent pain or other difficulty. In evidence he said that his son was now 12 years old. On the same day at 2.43pm the plaintiff is filmed at home moving without difficulty and then later at 3.44pm he is filmed at Warneet Beach with his three sons.

63 At Warneet Beach the plaintiff is depicted getting equipment from the back of the Toyota vehicle and filling a large bucket with seawater. Thereafter, between 4.10 and approximately 5pm the plaintiff is seen with his sons repeatedly bending and twisting as he digs with his sons in the sand immediately beside the sea for what he described as Bass yabbies which are apparently used for bait in fishing. The plaintiff can be seen plunging a piece of equipment into the sand and pulling back on a handle. The equipment apparently sucks sand from the wet sand area presumably containing the yabbies. It is then disbursed on the sandbank and any yabbies extracted. The plaintiff does this movement repeatedly over a period of approximately 50 minutes. He does not appear to be affected in any way by pain and his movements are unrestricted. I have concluded that the plaintiff’s movements are a complete contrast to what he displayed to Associate Professor Wallin.

64 The video taken on 8 July 2009, which is also part of Exhibit 5, depicts the plaintiff with his boys leaving the home at about 6am the following morning apparently unaffected with pain from the strenuous activities of the day before. The first stop appears to be the service station where the boat is supplied with petrol for a fishing trip. The plaintiff with his sons and the boat attached then drive from the Somerville/Pearcedale area to Sorrento where they are depicted launching the boat and going off on a fishing trip. Later the plaintiff returns to the boat ramp and retrieves the boat from the water and then goes home. At no stage does he appear to be disabled in any way, he appears to move freely and there is no impairment. The plaintiff appears to be pain free and having no difficulty with either driving the car, launching and retrieving the boat nor indeed driving for about one hour to the boat ramp.

Assessment of the evidence

65 It is clear from the medical evidence that the plaintiff suffers from what in summary form the doctors would describe as a light work back.

66 In the affidavit evidence and in the complaints made to doctors, on each examination the plaintiff complains of chronic and disabling pain in his lower back which is brought on by repeated bending or twisting or standing or sitting for long periods of time.

67 If one were to confine themselves to the medical evidence the overwhelming opinion would be that the plaintiff has suffered a serious injury.

68 However, the plaintiff’s case here has been severely damaged in my opinion by the evidence of video surveillance taken of the plaintiff over a period of nearly four years on three separate occasions. That video evidence consistently shows the plaintiff to be unrestricted in his movements, walking without a limp and to be living his life pain free. In particular, the video evidence shows that he has full forward flexion of his body and is able to bend over in such a way that his hands could certainly touch the ground and his head is down almost to knee level. The videos depicting the plaintiff washing his boat and car (Exhibits 2 and 3) and the video depicting the plaintiff with his children at Warneet Beach digging for Bass yabbies, I think give the lie to the history and complaints that he has made to the various doctors over a long period of time. In particular, this is brought out by the fact of comparison which can be made between the complaints made to Associate Professor Wallin on 9 July 2009 compared with the video taken of the plaintiff on 7 and 8 July 2009. Further, the videos taken on 5, 7 and 8 July 2009 were taken approximately at 10 to 14 days after the plaintiff consulted with Mr Kevin King. The videos are in complete contrast to the history and complaints made by the plaintiff to Mr King.

69 I accept the submissions made by Mr Blanden on behalf of the defendant that the video evidence here damages the plaintiff’s case. The video evidence quite clearly shows in my opinion that the complaints of disability which the plaintiff makes are to be weighed against the lack of disability shown in the video evidence. In my judgment the video evidence clearly shows that the plaintiff does not have the consequences in terms of disability from the third incident for which he has given evidence. Further, the video evidence casts grave doubts in my mind as to whether or not I should accept the evidence of the plaintiff as to his level of disabilities and pain and other consequences resulting from the injury he sustained in the third incident. From what I have seen in the video, compared with what the plaintiff has said in evidence, in his affidavits, and in the complaints that he has made to the doctors, I do not accept that evidence.

70 When confronted with the video evidence the plaintiff’s explanation was, first, that he refuses to let his low back injury interfere with his activities with his sons and, second, when he engaged in the activities shown he was medicated sufficiently so that there was no pain in contrast to when he consulted with doctors when he was deliberately not medicated. I do not accept these explanations. Whilst I accept that the plaintiff endeavours to engage in as many activities as possible with his children I do not accept that he would do so to an extent that means pushing himself to extreme pain and on a regular basis. Nor do I accept that even were the plaintiff medicated he could perform the range of movements that he depicted as performing in the videos just because he is medicated. The video evidence in this case is so strong as to render the plaintiff’s case unacceptable and I do not accept it.

71 Whilst the plaintiff claims that he is unable to engage in any form of employment, in my judgment the video evidence suggests otherwise. There are, in my view, available to the plaintiff various forms of light work employment which he could be able to undertake. I do not accept the evidence in the report of Ms Angel.

72 Whilst I am of the view that the plaintiff suffers from some periodic low back pain caused by ongoing degenerative disc disease in the lower back and exacerbated by an incident that occurred in February 2005, in my opinion the consequences from that injury cannot be properly described as very considerable or more than significant and marked. In my judgment the plaintiff has not made out a case that he suffered a “serious injury” within the meaning of that expression in the Act in the third incident. Further, the plaintiff has not made out a case that he is permanently disabled from any form of employment to such an extent that his earnings have been reduced by at least forty per cent.

73 Accordingly, the plaintiff’s applications made by originating motion are dismissed.

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11 A consistent approach of Judges of the County Court – see, for example, De Pasquale v AW Dark Pty Ltd
[2005] VCC 158, per Judge Higgins; Talevski v Fulop Trading Australia Pty Ltd [2007] VCC 833, per Judge
Strong; and Patterson v Burbank Plumbing and Maintenance Services [2007] VCC 1527, per Judge Ross.