De Groot v Victorian WorkCover Authority

[2024] VCC 1179

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No. CI-23-07162

MAXWELL DE GROOT	Plaintiff
v
VICTORIAN WORKCOVER AUTHORITY	Defendant

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JUDGE:	HIS HONOUR JUDGE PURCELL
WHERE HELD:	Melbourne
DATE OF HEARING:	1 August 2024
DATE OF JUDGMENT:	1 August 2024 (ex tempore)
CASE MAY BE CITED AS:	De Groot v Victorian WorkCover Authority
MEDIUM NEUTRAL CITATION:	[2024] VCC 1179

REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION

Catchwords:              Serious injury – injury to the hips – injury to the spine – pain and suffering consequences – credit

Legislation Cited:      Workplace Injury Rehabilitation and Compensation Act 2013; Transport Accident Act 1986

Cases Cited:Rowe v Transport Accident Commission [2017] VSCA 377; AG Staff Pty Ltd v Filipowicz [2012] VSCA 60; TTB SMS Pty Ltd v Reading [2020] VSCA 203

Judgment:                  Proceeding dismissed

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Fitzpatrick	Shine Lawyers
For the Defendant	Mr C O’Sullivan	Russell Kennedy

HIS HONOUR:

1The plaintiff in this proceeding, Mr Maxwell De Groot, is now 51 years of age.  His working life has essentially been spent driving trucks.

2Between January 2012 and September 2016, although perhaps more relevantly for this application, up until about April 2016, he drove a truck for a company called Metroll which required him to make delivery of gutters and fascias and similar items.  That work went beyond simply driving a truck, it involved him to perform heavy manual work to unload the truck at various locations each work day.  He gave evidence sometimes he would unload by hand up to 2 tonnes of material or product a day.

3In that context, this is a serious injury application brought pursuant to the Workplace Injury Rehabilitation and Compensation Act 2013.  The plaintiff claims that, because of the repetitive and heavy nature of the employment with Metroll, he suffered a serious injury either to his lumbar spine, or his left hip, or his right hip.   In respect to one or the other of the injuries said by him to be serious, he seeks the leave of the court to commence a common law proceeding for pain and suffering damages in circumstances where he continues to work as a truck driver, although he now works for Murphy's Transport.

4The proceeding was conducted in the usual way.  The parties tendered court books containing documents, principally medical reports and records, claim forms and the like, that were relied on.  In addition, the plaintiff tendered several affidavits sworn by him and an affidavit sworn by his wife, Larissa De Groot.

5I have considered the tendered evidence in the context of the parties' submissions. I shall refer to it, however, only to the extent necessary to explain my reasons.

6I note the plaintiff was required for cross-examination and, in an appropriate, respectful and relatively short cross-examination, he was tested as to the contents of his affidavits, what he had told the doctors and his general level of activity.

7Broadly, the legal principles are not in dispute.  Everyone familiar with this jurisdiction knows that it is the plaintiff who has the onus to identify firstly, the compensable injury relied on for serious injury purposes, and then to identify the impairment and impairment consequences from the claimed serious injury so as to meet the well-known 'very considerable' test.

8I will say a few brief words about credit.  As has been said many times, in a civil proceeding such as this, the credit of the plaintiff is often a highly relevant factor to the outcome.  During his oral evidence, the plaintiff struck me as a thoroughly decent, straightforward and honest witness.  He gave appropriate answers to questions put to him and made appropriate concessions, or what could be said to be admissions against his interest.     He certainly did not seek to obfuscate or argue the toss, as it were.

9In closing address Mr O'Sullivan, counsel for the defendant, accepted that the plaintiff presented well in the witness box and did not suggest this was really a credit case although he did highlight some of the issues around the plaintiff's affidavit and claimed impairment consequences, and how they fell away during cross-examination.

10For my own part, I do not consider this to be a credit case but, having said that, the plaintiff's affidavits need to be read firstly, in the context of his oral evidence, and secondly, they need to be read broadly as a set of documents because the relevant history has been teased out in a slightly piecemeal fashion in them.

11Coming back to my earlier point, more broadly the plaintiff's affidavits need to be seen in the context of his oral evidence.  To illustrate this point, in the affidavit sworn by him on 15 August 2023,[1] he gave evidence as follows:

'Before my injury I played a fair bit of 10 pin bowling.  MDG2 says at paragraph 5 that I haven't played 10 pin bowling for seven years at that time.  That is not right.'[2]

[1]Plaintiff’s court book (“PCB”) 36

[2]PCB 43, paragraph [40]

12MDG2 is an exhibit to that affidavit which was a statement that the plaintiff gave to an insurance investigator at his home on 17 May 2016.        In that statement, he spoke about some of his sporting and recreational interests.  He said in that statement, '[i]t was about seven years since I played 10 pin bowling.'

13Putting the totality of the plaintiff's evidence together, there was a theme, for want of a better word, that ten-pin bowling was something the plaintiff particularly enjoyed before developing symptoms in his back working with Metroll.  That enjoyment extended back to meeting his wife, who also enjoyed ten-pin bowling.

14In his affidavit, as mentioned, he said that the statement to the investigator was not accurate where he said he had given up ten-pin bowling about seven years beforehand.  Yet in his oral evidence, when taken to the statement, he was unequivocal that the statement was accurate.  He accepted that he had given up competitive ten-pin bowling consistent with the statement, but may have played the odd game here and there throughout the period from approximately 2009 through to 2016.

15It is always difficult when someone is asked to go back over events many, many years ago in the context of where someone has, as his counsel candidly said at the start of the proceeding, a complex application.

16At the risk of repetition, I thought the plaintiff was an impressive witness in the witness box.  I consider that I can rely on his oral evidence, but by the same token perhaps some of his affidavit evidence needs to be looked at a little closer.

17In that context, one of the issues that arises in this proceeding is the fact that the plaintiff has a range of non-compensable conditions.  In what is not necessarily an exhaustive list, he has conditions that have required treatment including a hernia, a left knee condition or perhaps both knees based on the clinical records, a carpal tunnel condition that has required surgery on the right side, and again, it is a little unclear but may continue to produce symptoms on the left side; he has also suffered significant ongoing sleep apnoea which has required a referral to respiratory physicians and treatment with a CPAP machine.

18In addition, the plaintiff has a long history of what might be called intermittent or grumbling low back pain.  On his own evidence, in an affidavit sworn by him on 5 June this year,[3] that history of low back pain goes back sometime before 2005.

[3]PCB 66

19In that affidavit, he said as follows:

'I have been reminded of some older GP attendances at Westgate Medical Centre.     One of these from 2005 refers to me attending for what is described as, "Chronic back ache many years." I accept that I did have back ache at times going back years before 2005.  I did take Panadeine Forte and Voltaren at times.'

20He then went on to say that despite that history, which he accepted went back a long time, those things tended to settle down.

21Skipping forward a bit, he then said the situation was very different now.  But the relevant point is this, that the plaintiff has on his own evidence a long history of intermittent low back problems.

22In that context, the issues in this proceeding are firstly, to identify the compensable injury or injuries said to have been suffered by reason of the employment with Metroll.       In respect to the low back, notwithstanding the opinion of Mr Menz, an orthopaedic surgeon who essentially opined that there was never an injury with Metroll, the defendant accepted it was open to the Court to conclude that, because of the work at Metroll, the plaintiff did aggravate underlying degenerative change in the lumbar spine.

23The defendant raised as an issue whether such aggravation persists and then if it did, whether the consequences of that aggravation meet the 'very considerable' test.

24On the other hand, the plaintiff submitted that he did suffer compensable injury, accepted to be an aggravation injury to the lumbar spine.  Mr Fitzpatrick of counsel on his behalf submitted that the evidence disclosed that such injury persists, and it was further submitted that it does produce a 'very considerable' consequence.

25I will return to discuss the claim based on the lower back in a moment.  But first, it is necessary to deal with the claim based on either the left or right hips.  I propose to do this as swiftly as possible.  The medical evidence is unequivocal that the plaintiff has osteoarthritic change in the hips.  That also likely extends back many years, certainly symptomatic by about 2013 and eventually the plaintiff underwent bilateral hip replacement surgery during 2022.

26The plaintiff's claim for serious injury based on one or the other or both of the hips fails for two reasons.  First, the medical evidence does not appropriately identify the contribution to any injury to the hip or hips from the employment with Metroll. Secondly, and perhaps more fundamentally, regardless of the medical evidence, the plaintiff's own evidence is of a good outcome from the hip replacement surgery, and on the evidence and an acceptance of his own evidence, he simply has not made out a 'very considerable' consequence from one of the other of the hips.

27Turning then to the claim based on the low back.  The defendant highlighted the opinion from Mr Paul D'Urso, a consultant neurosurgeon, who examined the plaintiff and provided reports at the request of the plaintiff's solicitors.     His initial report was 17 July 2023.[4]  But relevantly, in a third report from him, dated 26 July 2024,[5] in response to a question which could only be described as wordy and unclear, Mr D'Urso said as follows:

'It would appear likely that workplace activity performed as a truck driver for approximately 26 years materially contributed to multi-level disc degenerative change in Maxwell's lower spine.  Furthermore, work-related activity, particularly in 2015 and April 2016, is likely to have aggravated that degenerative condition and materially contributes to the persisting disability and incapacity that Maxwell described.  I would consider that Maxwell's employment has materially contributed to his persisting symptoms of disability and the findings that have been outlined in the reports I have issued.'

[4]PCB 117

[5]PCB 150

28The issue that arises that the defendant raised from that paragraph from Mr D'Urso's opinion, is as follows.  Firstly, Mr D'Urso attributes the plaintiff's employment over a 26-year period as materially contributing to multi-level disc degenerative change.

29Next, regarding causation, he opined that work-related activity, particularly in 2015, which I take to be a reference to a truck accident in which the plaintiff was involved in September 2015, and secondly, Mr D’Urso refers to what appears to be a relative innocuous incident in April 2016 when the plaintiff was lowering a box weighing approximately 4 kilos, have, in Mr D’Urso’s words, ‘[l]ikely have aggravated that degenerative condition and materially contributed to persisting disability and incapacity.’

30The problem is first, the truck accident would be a proceeding that would need to be brought in accordance with the Transport Accident Act 1986, and as such is not one that I can take into consideration.

31Secondly, whilst Mr D'Urso supports a conclusion that there is an ongoing contribution to the plaintiff's current condition from the April 2016 incident, he is less supportive of the way the plaintiff has presented this case, namely based on course of employment at Metroll.  But even taking a generous interpretation of Mr D'Urso's report, really what he is talking about is heavy work at Metroll as being an ongoing contribution to current disability and incapacity.  In my view, that does not avoid the problem that Mr D'Urso ascribes a contribution more broadly over a 26-year period of employment.

32As cases such as Rowe v Transport Accident Commission,[6] or AG Staff Pty Ltd v Filipowicz[7] demonstrate, it is impermissible to take a cumulative approach and start with a conclusion that a condition is serious, and to then work back to see what contribution has been made from, in this proceeding, a work-related injury.  It is equally impermissible to ask if, but for the compensable injury, the current condition would exist.

[6][2017] VSCA 377

[7][2012] VSCA 60

33In my view, there is evidentiary difficulty based on the medical evidence as presented.

34I pause here for a moment to note the following.  The medical evidence is effectively confined to medico-legal opinions from Mr Kossmann and Mr D'Urso insofar as the evidence the plaintiff relied on.  Whilst there is a collection of what I would term as bits and pieces from treating practitioners, many of those are directed to other conditions, in particular the hips or the sleep apnoea, and there is not much by way of useful opinion from a treating practitioner when it comes to the lumbar spine.

35Mr Kossmann, an orthopaedic surgeon, provided several reports regarding the plaintiff.     In a report dated 8 May 2024,[8] Mr Kossmann opined that the plaintiff suffered from an aggravation of pre-existing lumbar spondylosis as a result of his employment with Metroll.  He opined that there was ongoing consequences from that.  He described the prognosis as guarded.

[8]PCB 134

36On one view, Mr Kossmann is supportive of the way in which the plaintiff put the case.  But on another view, there is a limitation in Mr Kossmann's opinion.  He has not clearly separated out the extent of any aggravation injury insofar as it is referable to impairment consequences as at today's date.

37However, ultimately not much turns on the medical evidence in this proceeding and indeed, it was tempting to deliver these reasons without any reference to it.  Whilst, as I have indicated, I consider there are evidentiary difficulties based on the medical evidence for the way in which the plaintiff must present his case based on the state of the law, ultimately, in my view, even if I accept that the expression by Mr D'Urso of a material contribution is sufficient for causation, the result remains the same.  That is because on an assessment of the evidence, in particular the plaintiff's oral evidence, he has simply failed to demonstrate a 'very considerable' consequence.

38His counsel submitted that the big ticket item, for want of a better phrase, or the cornerstone of the application, was the plaintiff's ongoing pain.  The plaintiff had described that pain as 3 to 4 at best out of 10, extending up to 7 out of 10.  His counsel submitted that that had been constant and unremitting since he ceased employment with Metroll in September 2016, that it did interfere with daily activity, required the regular use of Panadol, and when considered with the various restrictions that the plaintiff set out in his affidavits, such as having difficulty lifting cooking items and requiring assistance from his family, it was sufficient to establish a 'very considerable' consequence.

39On the other hand, counsel for the defendant submitted that the Court should look at not only what was lost but what was retained.   In particular, what is retained includes the ability to work 50 hours per week doing a mixture of truck driving and leading hand duties in what is a real job and not a made up job.  In addition, the plaintiff continues to engage in his hobby of coaching football and also derives some supplementary income from that.

40The defendant highlighted that the plaintiff is having little or no active treatment, and I pause there to note that that is consistent with the lack of material from treating practitioners.  The defendant highlighted that the medication is essentially over the counter medication and broadly submitted that the plaintiff was overall able to lead a full and active life.

41As mentioned earlier when discussing credit, the defendant also highlighted how several claimed impairment consequences fell away during cross-examination, in particular, claimed consequences for sleep and ten-pin bowling fell away because of unrelated conditions.

42Somewhat reluctantly, because of the positive view I have formed about the plaintiff I have, however, come to the conclusion that the submissions of the defendant are to be preferred.

43The plaintiff may have ongoing pain in his back that fluctuates.  I accept that it may at times interfere with the enjoyment that he gets from daily activity.  I accept that he may from time to time need to modify his work, for example, getting out of the truck for a stretch on longer trips.

44But equally, the evidence is that the plaintiff is able to engage in a range of day to day activities. He works long hours on days when he has football coaching commitments notwithstanding a very early start and, at times, a long day.  He is able to drive the 30 to 45 minutes home, prepare himself for training and attend training.

45He is still able to engage in activity with his family even if from time to time that is restricted or not as pleasurable as he would hope.  It is notable that he takes over the counter medication.  I also consider it notable that at times he has required stronger medication for other unrelated conditions or impairments.

46As has been said in cases such as TTB SMS Pty Ltd v Reading,[9] I must consider not only the range of impairments and impairments consequences that come before the courts, but also those that do not.

[9][2020] VSCA 203

47Consistent with what was said in that case, the plaintiff has impairment consequences, in my view, at its highest, leaving to one side the difficulty with the medical evidence, that might not be trivial and might even be capable of being described as marked or significant, but in my view are not such so as to meet the legal test of 'very considerable.'

48Accordingly, for the reasons given, the application is dismissed.