De Menna v Dacmn Operations Pty Ltd and VWA

[2009] VCC 290

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT MELBOURNE

CIVIL DIVISION

Case No. CI-07-05185

LUKE DE MENNA	Plaintiff
v
DACMN OPERATIONS PTY LTD	First Defendant
(formerly BROADWAY AND FRAMEGROUP PTY LTD)
and
VICTORIAN WORKCOVER AUTHORITY	Second Defendant

---

JUDGE:	HER HONOUR JUDGE K L BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:	16 March 2009
DATE OF JUDGMENT:	24 March 2009
CASE MAY BE CITED AS:	De Menna v DACMN Operations Pty Ltd & VWA
MEDIUM NEUTRAL CITATION:	[2009] VCC 0290

REASONS FOR JUDGMENT

---

Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – injury to the lumbar spine – pain and suffering only- whether consequences to the plaintiff are

serious.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms F McLeod SC and	Nowicki Carbone & Co.
Mr P Gates
For the Defendants	Mr R Gillies QC and	Lander & Rodgers
Ms M Britbart
HER HONOUR:

1 This is an application for leave to bring proceedings for damages pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of his employment with the first defendant, in particular on 25 March 2002 (“the said date”).

2 The plaintiff brings this application pursuant to clause (a) of the definition of serious injury to be found in s.134AB(37) of the Act. There, “serious” is defined relevantly as meaning:

“(a) permanent serious impairment or loss of a body function.”

3          The impairment of body function relied upon in this case is the low back.

4          The plaintiff relied upon two affidavits sworn by him. In addition, he relied upon affidavits sworn by his mother, his sister and two friends. Both parties relied on medical reports and other medical material which was tendered in evidence. I have read all the tendered material.

The Plaintiff’s Evidence

5          The plaintiff is presently aged twenty-five, having been born on 13 April 1983. He left school after Year 10. He worked as a pastry cook for approximately two years and then worked as a detailer for Sheppard’s Bodywork until about May 2001.

6          On 15 May 2001, the plaintiff commenced employment with the first named defendant as a driver and yardsman. His duties involved manual labour, including delivery to building sites and unloading cement bags. He worked 40 hours per week earning $10.60 per hour, together with regular overtime of between 18 and 24 hours a week at $16 per hour.

7          The plaintiff believed that he had “hurt his back a little bit” at work before March 2002 and that he had attended his doctor. He attended Dr Singh on 12 December 2001 because of an injury to his left bicep.

8          On the said date the plaintiff suffered significant lower back pain at work after loading and unloading pallets containing bags of cement weighing 40 kilograms (“the incident”). He reported the incident to Lucio, the building supplies manager, and also to Tony de Luca, sales manager.

9          The plaintiff ceased worked later that day and attended his general practitioner, Dr Lee, who certified him totally unfit for work and prescribed medication. Dr Lee diagnosed an acute musculo-ligamentous strain.

10        The plaintiff returned to work with the first named defendant on modified duties on 8 April 2002.

11        The plaintiff could not remember, following examination by Dr Lee on 17 April 2002, whether he had gone back for review on 27 April 2002. He denied that he failed to attend the review because he had recovered.

12        In his second affidavit sworn on 12 February 2009, the plaintiff mentioned he suffered a shoulder injury on 9 September 2002 after he was made to throw bags of cement into a bin. He attended his general practitioner and was put on light duties for six weeks. He confirmed in cross-examination that he was certified unfit for all duties until 13 September 2002 because of shoulder pain and then certified fit for light duties. On 26 September 2002, he attended his doctor for low back pain and was certified fit for modified duties on that basis.

13        The plaintiff was cross-examined as to the lack of reference to his shoulder injury in his first affidavit and the fact he had deposed that he had time off from 9 September 2002 because of his back. The plaintiff explained that he made no reference to his shoulder injury in his first affidavit because he was concentrating more on his back, and the shoulder injury was “quite some time ago”. He denied he had included his shoulder injury in the second affidavit because he realised he had been “caught out” after he had seen his medical records.

14        The plaintiff agreed he did not tell Mr King or Mr Miller about a shoulder injury. His shoulder was not really troubling him at the time of those examinations. When cross-examined about the history he had given to Mr Miller, of hurting his back shovelling in September 2002, the plaintiff said he had injured his shoulder in that incident but it made his back flare up as well. He disagreed he had been dishonest when giving histories to those examiners.

15        On 9 October 2002, the plaintiff ceased work with the first named defendant. He left that employ because he had to work very hard. He was “treated like a mule”. He denied he left to earn more money or because he was not allowed to drive a larger truck as he had requested. He denied he had been reprimanded for throwing bags of cement at other workers. The plaintiff was told by the first defendant “just to keep working and if he did not want to he could get out.”

16        The plaintiff attended Dr Renzaho on 9 October 2002 as he was asked by the first defendant to get a medical clearance saying he was fit for work. The plaintiff did so as otherwise he would not have received his entitlement to one week’s leave and also his holiday and sick pay and leave upon leaving the first named defendant’s employ.

17        When asked about Dr Renzaho’s note that he had a full range of movement, the plaintiff said he did not believe the note was accurate and he could not remember being asked by her to demonstrate his level of movement. He denied that when he saw Dr Renzaho he was perfectly fit and without any back problems.

18        The plaintiff commenced employment with Mercuri Building Supplies (“Mercuri”) as a truck driver and yardsman on 14 October 2002.

19        The plaintiff agreed that prior to starting that job he had signed an employment contract with Mercuri which included a pre-existing injury declaration where he had not revealed he suffered from any pre-existing condition. He explained he had not disclosed his back condition because he knew with a pre existing condition and a job involving heavy lifting, he would not get the job. He was desperate for work at that time. He had always “had been a person to work” so he did not want to put that sort of “stuff” forward. He agreed he had deceived Mercuri so he would get the job.

20        The plaintiff denied that the work he did at Mercuri was heavy. He said there was a big difference between that job and his work for the first defendant. Mercuri was a much lighter job. At Mercuri there were two people to unload any cement bags. It was a family business where its employees worked appropriately with correct lifting equipment and they were provided with manual assistance according to the regulations. He was provided with a back brace.

21        The plaintiff was paid the correct wages at Mercuri. He worked regular overtime. The job involved more garden work, delivering sand and soil. There was not much of a demand for cement bags. The loads were not so heavy. The plaintiff was required to deliver garden mulch with tippers which did not involve any heavy lifting.

22        The plaintiff denied that the Mercuri job description document tendered by the defendants indicated that his job there involved heavy work.

23        On 29 March 2003, the plaintiff suffered a temporary aggravation of his lower back pain after he shovelled some sand at work. He was off work for a few days and saw his general practitioner and had physiotherapy treatment. The plaintiff returned to work at Mercuri on 7 April 2003, where he worked until 12 November 2003.

24        The plaintiff worked with Yarra Trams as a tram driver for four months from 17 November 2003.

25        In May 2004, the plaintiff worked for First Fleet Labour Force Solutions as a crane operator and driver.

26        The plaintiff lodged a Claim for Compensation relating to the 2002 incident on 7 May 2004. He described suffering injury when he was unloading heavy cement bags weighing in excess of 40 kilograms on a constant repetitive basis on 25 March 2002. He described an injury to his spine, in particular his lower back, legs, right shoulder and arm, and stress.

27        On 1 July 2004, the plaintiff commenced employment with Cruise Program as a semi-trailer driver filling in for another worker.

28        Between 2 August 2004 and 10 January 2005, the plaintiff worked with Universal Constructions, a transport company. He avoided undertaking any lifting duties. From 20 January 2005, the plaintiff worked for four months with Roadmaster Haulage driving semi-trailers.

29        In November 2005, the plaintiff commenced employment with De Menna Cranes (“his family business”). He continues to work in his family business as a crane operator and driver. A dogman was employed to assist him with all duties. The dogman connects the crane to loads of timber with chains and does the heavy work. The plaintiff can strap a load manually with light chains but he usually uses a crane Because he is in pain, he tries not to lift weights or bend.

30        The plaintiff’s work is light, skilled work which requires him to carefully manoeuvre the crane to move loads of timber on building sites. Working as a crane driver he presses levers and he does just a little bit of manual work, such as putting wooden blocks on the ground for the stabilisation of crane legs.

31        At the worksite the plaintiff can walk around or sit and rest as needed. His hours of work are flexible. He usually works 40 hours per week together with 4 to 7 hours of overtime. Forty per cent of the plaintiff’s time is spent working on site, sitting on a truck and using a remote control to operate the crane. The rest of the time is spent doing administrative and marketing work.

32        Assistance is available to him from family members and other employees. The most strenuous aspect of his site work is driving trucks to various work places. To assist the plaintiff, his family business purchased a Volvo truck with better suspension and newer seats to make the ride smoother for him and driving does not cause him as much back pain. The plaintiff drove to Griffith in New South Wales earlier this year to deliver some switchboard components. He had to stop a couple of times on the drive because of his back pain.

33        Because the business is run out of the family home where he lives with his parents, the plaintiff can catch up on paperwork out of usual business hours if he has got behind on a job because of his back pain.

34        If something happened to his present job the plaintiff thought he would be in a bit of trouble doing long hours in any other work. The plaintiff agreed he presently earns $100,000 per annum. He makes a lot more money in his current job than in any previous job but only because his father looks after him.

35        The plaintiff identified the man shown in twelve and a half minutes of surveillance film taken at the family business as a fellow worker, Jason Brennan, who has been employed for over a year. The plaintiff disagreed that he performed the heavier tasks Mr Brennan was shown engaged in, such as lifting boxes, bending and tying chains. Other employees, such as Mr Brennan, did the heavier manual work.

36        The plaintiff agreed that he could lift chains weighing about 10 kilograms which were not heavy. He does not load boxes onto the trucks at all. He sometimes handles pieces of pine weighing 5 kilograms or less, a job usually done by dogmen.

37        The plaintiff did not intend to work as a crane driver for his career. Had he not been injured, he intended to get more experience in garden supply companies with a view to starting his own engineering and metal workshop. He had an interest in metalwork since high school and was interested in making garden furniture and fixtures.

38        Prior to the incident the plaintiff could do any heavy work he wanted to but he now feels his career options are limited because he cannot do heavy physical work.

39        The plaintiff has continued to experience back pain radiating down both legs since the incident. He has difficulty bending. He experiences increased pain after sitting, standing or walking for prolonged periods. He generally has trouble sleeping through an entire night because of back pain. He spends a lot of time tossing and turning to try and get comfortable and will often wake during the night to take medication. He has recently started to take Valium which has improved his sleep. On weekends the plaintiff spends a lot of time catching up on sleep.

40        As a result of his lower back injury, the plaintiff sometimes experiences spasms running down to his feet. The occurrence of such spasm is unpredictable. Analgesic medication seems to limit the number of spasms but the plaintiff does not like taking too much medication as it affects his driving ability and also gives him problems with constipation.

41        The plaintiff’s back has not got any better over the last twelve months. It has been bad “the whole way” since the incident. In addition to back pain, which is always with him, he also has referred pain to the right leg which comes on and off.

42        Sometimes the plaintiff’s back pain can get really, really bad. Once he had to stay in bed for two weeks because of his pain. After a long amount of resting, stretching and medication his pain can improve.

43        Before the incident the plaintiff was very fit. He took a lot of pride in his personal appearance. He enjoyed boxing and going to the gym. He went to the gym for approximately five hours a day, Monday to Friday, and for two and a half hours on Saturday and Sunday.

44        In that five hours he warmed up on the bike and the treadmill, he then boxed for two hours and for the remainder of the time he did weights. Away from the gym he ran up to 10 to 20 kilometres every day.

45        A photograph of the plaintiff looking fit aged twenty, was tendered. At the time of the incident the plaintiff weighed 90 kilograms and his body fat had been measured at seven per cent by a professional body builder at his gym.

46        Since the incident the plaintiff has struggled to take part in his sporting activities without feeling pain. Because of the jarring involved, he finds it very difficult to run. He tried to run on a treadmill in the last year or so but he experienced so much pain that he had to stay in bed the next day. He has not tried to use an aerobic machine since.

47        Before the incident the plaintiff was 95 per cent of the way to boxing competitively. He has not boxed since then.

48        The plaintiff last attempted to go to the gym about four or five months ago. He did light weights for about half an hour. He bench pressed about 40 pounds, whereas when he was eighteen he could bench press up to 300 pounds. The plaintiff has done some weights at home to strengthen his back. He gets very depressed about his condition so he tries to give everything a go but he always ends up being very sore and unable to continue.

49        The plaintiff finds it difficult to do personal tasks, such as washing his legs and feet in the shower, shaving and brushing his teeth. He has to hold onto the sink or sit down when shaving or brushing his teeth. He has pain when putting his shoes on and lacing them up. He generally experiences increased pain when involved in activities requiring bending, twisting or manoeuvring.

50        Before the incident the plaintiff led a very active social life. He enjoyed going out to pubs and dancing. Since the incident, the plaintiff rarely goes out and when he does, he does not get much enjoyment because he has difficulty joining in activities because of his constant pain.

51        The plaintiff finds it difficult to stand or sit in the same position for extended periods of time and he often needs to move around, but even when he does that he has to lie down and rest. That makes it very difficult for him to attend a hotel or even go to a restaurant for a meal where he would have to sit or stand for prolonged periods.

52        As a result of his injury, the plaintiff has particular trouble dancing or standing at a bar and rarely goes out other than to visit friends or family at their homes. Accordingly, there are a lot of friends he rarely sees because he does not go out as much as he used to.

53        The plaintiff has lost his self-esteem and feels nothing like he used to. It really upsets him that he does not get to do all the things he used to do with his friends.

54        The plaintiff has always wanted to have a family but now he does not know whether he would be able to play actively with his children because that would cause him a lot of pain. He does not want to be a lazy father.

55        Prior to the incident the plaintiff used to spend a lot of time working on steel and wood projects at home. He now finds bending over the workbench causes his lower back to cramp up and the pain can be severe. He has tried to do these activities since the incident but does not enjoy them as much and if he tries it takes a while for the pain to go away. He attempted welding a steel door for his house in early 2008 but could not finish the job because of back pain.

56        Prior to the incident the plaintiff used to go camping, shooting and fishing with friends at least two to three times a month. He now struggles to spend long periods of time camping because of the cold weather which makes his back lock up.

57        The plaintiff has not had a holiday in a few years; apart from going away for a little bit of camping on the Murray for maybe a night, whereas before the incident he would go for weeks at a time. He went on his only plane trip to Queensland in November for two or three days to Surfer’s Paradise.

58        The plaintiff still owns a small boat. He has taken it out in the Bay once and probably once or twice on the Murray River. He has not gone out a great deal. Last Christmas the plaintiff took the boat to Echuca. He stayed in a hotel. In November he went out snapper fishing with a friend at Mordialloc.

59        The plaintiff continues to consult Dr Lee at the Grimshaw Street Clinic (“the Clinic”). He is prescribed Panadeine Forte and Naprosyn for his lower back pain. He takes one to two Naprosyn tablets per day. He takes up to six Panadeine Forte per day. On a good day he takes two or three tablets and on a bad day he takes six. He tries not to take Panadeine Forte too much because it constipates him a lot, but he takes it anywhere between two to four times a week, two tablets at a time.

60        If he does not take that medication every day the plaintiff finds the pain too difficult to bear. He takes Valium three or four times a week to sleep. He always wakes up with a lot of pain and stiffness in his back. He continues to do the exercises his physiotherapist has given him when he wakes up in the morning.

61        The plaintiff has been told by Dr Lee that there is nothing more that can be done to manage his lower back pain so he relies on rest, exercises and medication. For a while, the plaintiff used his father’s medication as he was “not the sort of person to go to the doctor all the time.”

62        The plaintiff explained that Dr Lee never really used to write a lot down when he examined him. The plaintiff could not recall telling Dr Lee on 25 March 2002 that he had hurt his back four months earlier. He could recall, that when he saw Dr Lee on that occasion his pain was very severe.

63        On 12 June 2002, when the plaintiff attended Dr Lee, there was no note of a back complaint. The plaintiff said he would have asked for medication on that date as he always asked for medication every time he went to the doctor.

64        When cross-examined as to the lack of references in Dr Lee’s notes to back complaint on various attendances after September 2002, the plaintiff said he could recall talking to Dr Lee about his back. He always spoke to Dr Lee about how his back was and told him where the pain was.

65        The plaintiff attended the physiotherapist on a couple of occasions. He had not been back to the physiotherapist because that treatment had never helped him – a position confirmed by his doctor.

66        In early 2009, the plaintiff asked Dr Lee about seeing a specialist but he has not heard anything further in this regard. The plaintiff does not really know much about referrals to specialists and as far as he is concerned he had been told there was nothing that could be done for his back so he just bears the pain.

67        As to other health issues, the plaintiff did not believe he had dislocated his shoulder. It does not play up that much. He does not really get much more pain than normal in his right ankle which he injured in October 2007. His neck is now pretty good and he denied he got neck pain from time to time.

The Plaintiff’s Medical Evidence

68        The plaintiff attended Dr Singh at the Andrew Place Clinic in Bundoora on 12 December 2001 when he complained of a left bicep strain and he was certified unfit for all duties for two days.

69        On 25 March 2002, the plaintiff attended Dr Lee at the Clinic complaining of back pain. Dr Lee noted that about four months prior, the plaintiff was lifting a 40 kilogram bag of cement and he felt pain in his lower back.

70        On examination, Dr Lee found the plaintiff to have suffered from acute musculo-ligamentous strain of his lower back, involving both sacrospinatus muscles and sacroiliac joints. The plaintiff was treated with analgesics, anti- inflammatory tablets and physiotherapy. Dr Lee noted the plaintiff was able to resume work, eventually, on restricted duties.

71        On 31 March 2003, the plaintiff consulted Dr Lee for a significant relapse of back strain after shovelling sand on 29 March 2003 whilst working for Mercuri. The plaintiff was given treatment similar to that received in March 2002.

72        The plaintiff was last seen at the Clinic by Dr Matthews on 10 January 2009 for middle and upper back strain suffered by him after bending the previous day.

73        In Dr Lee’s opinion the plaintiff’s pain and suffering had been mainly organic. Dr Lee noted the plaintiff’s lumbar injuries had been managed with medication, such as analgesics, anti-inflammatory tablets, Valium and physiotherapy, and his weight problems had been dealt with using medication and dieting.

74        In Dr Lee’s view the plaintiff will have to restrict his bending, lifting and handling of heavy loads and keep an eye on his weight. Now and again the plaintiff may need physiotherapy, swimming, exercises and medication.

75        In Dr Lee’s view the plaintiff’s condition was substantially stable and arose in the course of his employment with the first named defendant. Dr Lee considered the injury of 29 March 2003 was an aggravation of the injury suffered on the said date.

76        In Dr Lee’s view, the plaintiff’s spinal injury would weaken his spine permanently and his working capacity would be restricted to minimal bending, lifting and handling loads over 10 kilograms on a full-time basis. He considered the plaintiff’s activities of daily living would not be much affected provided he took good care of his spine.

77 Mr Kevin King, orthopaedic surgeon, examined the plaintiff on 5 November 2008. The plaintiff told Mr King of mild niggling back pain until the said date when he was doing work that was heavier than usual and his back pain became increasingly severe.

78        On examination, the plaintiff complained of constant aching pain in the lower back region, present day and night, fluctuating in intensity, always of at least moderate severity at rest with quite severe flare-ups intermittently, often for more than an hour or so at a time brought on by exertion.

79        The plaintiff also complained of constant aching in both buttocks and thighs, the right being worse than the left, the pain being of moderate severity most of the time.

80        On examination, the plaintiff had two-thirds of the normal range of movement of the thoracolumbar spine. Mr King found no evidence of exaggeration by the plaintiff.

81        In Mr King’s view, having to lift, load and unload 100 bags of concrete at 40 kilograms each on a daily basis, it appeared the plaintiff was exposing his thoracolumbar spine to a very significant degree of repetitive physical stress and strain. This had caused repetitive minor injuries to the lumbar discs and associated ligamentous structures. There was a gradual and spontaneous onset over weeks and months during 2001 of slowly increasing lower back pain.

82        Mr King commented that he would not normally expect significant degenerative changes to be present in the L5-S1 disc in so young an adult, and it was a reasonable assumption that those abnormalities in that disc and supporting ligamentous structures were the result of trauma at work.

83        Accepting the plaintiff’s history, Mr King believed that his work from May 2001 was a precipitating factor in the onset of symptoms, and the particularly heavy bout of work on the said date seemed to have been the cause of the plaintiff’s current, constant disabling back pain with discogenic pain radiating to both buttocks and thighs.

84        In Mr King’s opinion, the plaintiff’s back and leg problems were severe enough to prevent him ever returning to the heavy, unskilled manual labouring duties that he was doing prior to the incident.

85        Mr King could find no evidence of any sort of psychological overlay in the plaintiff, whom he described as a seemingly sensible well-motivated young man. He considered the plaintiff’s condition to be permanent. Mr King did not think surgery was indicated at present and thought that there was a slight possibility thereof in the future.

Investigations

86        An x-ray of the lumbar spine carried out on 20 October 2005 showed mild degenerative changes to the right T12-L1, bilateral L4-5 and L5-S1 facets.

87        A CT scan of the lumbosacral spine, taken on 29 June 2006 showed minimal diffuse disc bulge at L5-S1.

88        An MRI scan of the lumbar spine taken on 20 July 2006 showed the L5-S1 was moderately degenerate and mildly flattened, exhibiting a small posterior bulge.

Lay Evidence

89 The plaintiff’s mother, Maria de Menna, swore an affidavit on

12 September 2009. She confirmed the plaintiff was an active athletic young
man before the incident in March 2002.

90        In the weeks following the incident, the plaintiff struggled when he came home from work. She gave him hot water bottles and painkillers and he had to lie down.

91        Mrs De Menna confirmed that the plaintiff’s father bought a new Volvo truck for the plaintiff to drive at work. She confirmed the plaintiff’s involvement in crane driving and also administrative duties in the family company.

92        Mrs De Menna deposed that the plaintiff hardly ever goes running. He tries to do weights every once in a while but the pain gets in the way. The plaintiff now rarely goes camping. Sometimes she sees the plaintiff get frustrated and depressed when having trouble keeping up with his friends. She is worried about the plaintiff’s physical wellbeing and the amount of painkillers he takes.

93        The plaintiff’s sister, Krystal, who is aged twenty-four, swore an affidavit on 19 February 2009.

94        Prior to the incident, at times she went to the gym with the plaintiff where they would spend over an hour at any one time. They have not been to the gym together since the plaintiff hurt his back. The plaintiff has lost his passion for keeping his body in shape and he does not come to the gym with her because he is in too much pain.

95        Ms De Menna used to go out with the plaintiff and their friends on Friday and Saturday nights to clubs and pubs but the plaintiff no longer joins them. He also does not participate to the same degree in holiday, fishing and camping activities they used to enjoy together. The plaintiff has had to leave fishing trips early because of pain.

96        In June 2008, when Ms De Menna went ice skating with the plaintiff, he was not even able to put his skates on because his back was too sore and he just sat down and watched. In her view, since his injury, the plaintiff had gone from a person who was ambitious and full of life to a person who has no dreams anymore.

97        Wayne Purton, a friend of the plaintiff since primary school, swore an affidavit on 23 February 2009.

98        Prior to the incident he would sometimes go to the gym to train with the plaintiff. He would also go fishing or camping with the plaintiff every second weekend or so and go to events such as the Southern 80, a water ski race held every year in Echuca.

99        As a result of his injury, the plaintiff does not go to the gym to train anymore. The plaintiff no longer comes with Mr Purton and his friends if they go away camping. On one occasion, the plaintiff went to the Southern 80 but he had problems standing all day and he no longer attends. Mr Purton still sees the plaintiff at least once a week and they spend time at his house or go for a quiet meal.

100       Another primary school friend, Brock Arnold, swore an affidavit on 5 March 2009. In 2000 and 2001 he and the plaintiff used to go to the gym together nearly every night. The plaintiff also enjoyed going out partying with friends and they would often go out together.

101       As a result of the plaintiff’s injury he does not see the plaintiff as often as he used to and it can sometimes be months between visits. The plaintiff does not go to the gym with him anymore and they do not do the same physical activities they used to. When they see each other they generally have a quiet drink together and catch up. They no longer go out partying together.

Surveillance

102       The defendants admitted that there were 56 hours and 30 minutes of surveillance of which there was 12 and a half minutes video.

Admission in relation to Compensation Claim

103       The defendants admitted having accepted the plaintiff’s claim for medical expense and like expenses, totalling $300 inclusive of the cost of two reports. Weekly payments were not made because the threshold was not reached.

The Defendants’ Medical Evidence

104       The plaintiff was cross-examined as to the contents of Dr Lee’s notes.

105       The plaintiff was examined for medico-legal purposes by Dr Wyatt on 30 November 2005. The plaintiff told her about his back problems developing in the course of his duties on the said date.

106       The plaintiff complained of a continued soreness in his lower back with a constant ache and occasionally pain radiating to his legs. On a scale of zero to ten he described his pain as six to seven out of ten most of the time. On examination, there was two-thirds normal lateral flexion and forward bending to three-quarters normal.

107       Whilst she commented it was likely he would have back problems into the indefinite future, Dr Wyatt accepted that the plaintiff’s employment was only a contributing factor to his back problem in the few months after the incident.

108       In her view the incident would not be expected to result in a long-term back problem. She noted the plaintiff’s family history of back problems and that he was in the age group where the development of back pain was most common. She did not consider the plaintiff’s employment in 2002 was a continuing contributing factor to his condition.

109       Dr Wyatt noted the plaintiff had returned to his normal job and was fit for work as an owner/operator of a crane.

110 Mr Russell Miller, orthopaedic surgeon, examined the plaintiff on 4 August 2008. Mr Miller was given a history of an incident where the plaintiff developed lower back pain when unloading cement bags in December 2001. The plaintiff told him of a further event in late March 2002 when the plaintiff hurt his back doing similar duties. Mr Miller was also told of a further incident in approximately September 2002 when the plaintiff had developed some lower back pain shovelling.

111       At the time of the examination the plaintiff complained of lower back pain and discomfort radiating into both legs but mainly the right. Back pain was the most dominant feature.

112       On examination there was no deformity. There was lower lumbar tenderness and mild, lower lumbar muscle spasm. There was some restriction of movement.

113       Mr Miller had available to him the 2006 MRI. In his view, it was likely the plaintiff had suffered an L5-S1 disc injury. He thought the plaintiff had significant ongoing symptoms and that his prognosis was only fair. In Mr Miller’s view the plaintiff had a mild degree of mental state reaction.

114       Mr Miller considered it likely that the plaintiff’s significant physical work contributed to the evolution of his spinal disease. Mr Miller noted, on the information available to him and the plaintiff’s acknowledgement that he was uncertain of dates, it appeared that the plaintiff’s symptoms were precipitated in relation to a work event in approximately December 2001 with further aggravations in approximately March 2002 and September 2002.

115       Mr Miller thought the plaintiff would require ongoing treatment and that surgery was unlikely. He considered the plaintiff was unsuitable to return to his pre-injury work or heavy physical work and that the plaintiff could do moderately physical work providing it did not involve large amounts of repetitive bending or lifting of weights of more than 5 kilograms. Further, the plaintiff would need to shift his posture on a regular basis.

116       Mr Miller thought the plaintiff’s condition had substantially stabilised and that he was left with a mild degree of long-term impairment. He thought the plaintiff would have some restrictions in his capacity for his pre-injury leisure and recreational pursuits. He thought the plaintiff was only fit for modified duties. In his view, the plaintiff’s condition had been a significant contributing factor in terms of aggravation and acceleration of the process in the lumbar spine.

Lay Evidence

117       The defendants relied upon an unsworn statement dated 23 November 2005 from Tony de Luca, sales manager with the first named defendant.

118       Mr De Luca mentioned that the plaintiff wanted to work on heavier trucks but he was told he could not because of his age.

119       In March 2002, “Luigi” told Mr De Luca that the plaintiff had reported a back injury as a result of performing a delivery to a construction site. Apparently the plaintiff complained he had hurt his back when he tried to lift bags of concrete. An incident form would have been completed at that time but Mr De Luca did not have the document. He confirmed the plaintiff returned to light duties, having had two to three weeks off work.

120       Mr De Luca noted the plaintiff was into body building and would complain about aches from heavy workouts. After the incident, Mr de Luca made enquiries of the plaintiff’s doctor as to the amount of gym work the plaintiff was doing.

121       Mr de Luca counselled the plaintiff because he had been throwing rocks with other workers. The plaintiff often broke the rules and would manually lift bags of cement himself.

The Plaintiff’s Earnings

122       The defendants tendered a summary of the plaintiff’s taxation returns which set out his gross income in the 2007-8 financial year was $100,798. Since the incident, save for the 2003-4 financial year when the plaintiff earned $20,617, his gross annual income has progressively increased from his 2001-2 financial year earnings of $27,882.

Credit
123	Counsel for the defendants submitted that there were issues as to the plaintiff’s credit in this case. In this regard, he referred to the plaintiff’s failure to mention the shoulder injury in his first affidavit and also to medico-legal examiners in recent times. I accept, however, that the plaintiff’s shoulder no longer troubles him and was not of concern to him when he saw Mr Miller and Mr King.
124	Whilst he properly admitted he was being deceitful in failing to disclose his pre existing condition upon starting work with Mercuri, his explanation is understandable.
125	There is no surveillance and there is no medical opinion to the effect that the plaintiff is exaggerating or embellishing his symptoms or that he has not co- operated on examination. Experienced examiners, Mr King and Mr Miller, found restricted lumbar movement on recent examinations.

Findings

126       Whilst the question of whether there was a compensable injury on the said date was raised initially, and there was cross-examination of the plaintiff in this regard, this issue was conceded by counsel for the defendants.

127       Whilst it was submitted the plaintiff’s injury was trifling, it was accepted that “something happened” to the plaintiff’s back on the said date. The plaintiff attended his doctor and the incident was reported. There was no argument that the plaintiff’s condition was not organically based.

128       Dr Wyatt is alone in her view that the any role played by the incident in the plaintiff’s condition ceased many years ago.

129       Whilst it was submitted by counsel for the defendants that the investigations of the plaintiff’s back by x-ray and CT scan were unremarkable, it is the impairment not the injury that is the relevant consideration. I note, however, Mr King’s opinion that the degenerative changes demonstrated are unusual in such a young man.

130       The issue, therefore, is whether the plaintiff’s impairment from the incident is serious; namely, whether the consequences to the plaintiff of the lower back injury when judged by comparison with other cases in the range of possible impairments or losses of body function may be fairly described as being more than “significant” or “marked” and at least as being “very considerable” – s.134AB(38)(c).

131       The term “serious” requires the impairment and its consequences to be viewed objectively and also judged on an external comparative basis against other possible impairments not necessarily in the same category: see Humphries v Poljak (1992) 2 VR 129, at 170, accepted by the Court of Appeal in Barlow v Hollis (2000) VSCA 26: see in particular Chernov JA at para 29.

132       The impairment must be permanent, in the sense that it is likely to last into the foreseeable future.

133       Arguing that the impairment was not serious, counsel for the defendants relied upon the plaintiff’s work history since the incident. It was submitted the plaintiff had limited time off with the first defendant following the incident, the work at Mercuri was heavy and the plaintiff continues to work full-time with his family company, earning over $100,000 per year.

134       As Chernov JA observed in Sumbul v Melbourne All Toya Wreckers Pty Ltd [2006] VSCA 292, it would ordinarily be difficult to conclude that the pain and suffering consequences were serious in circumstances where it is accepted that a plaintiff is physically capable of alternative employment unless there was some other evidence that showed he experienced significant pain or he otherwise suffered significantly from the injury.

135       Whilst I accept that each case must be looked at on its facts and that the observations of Chernov JA in Sumbul (supra) should not be treated as a general proposition that the ability to engage in full-time work precludes a finding of serious injury, such observations should be given due weight.

136       The only evidence that the plaintiff’s work at Mercuri was heavy is a literal reading of the work duties. The plaintiff denies this was the case. He described this job as lighter than his work with the first defendant. It was a safer workplace where the lifting regulations were followed and he was provided with a back brace.

137 I do not accept counsel for the defendants’ submission that the plaintiff’s abandonment of a loss of earning capacity claim in circumstances where the plaintiff presently earns in excess of $100,000 is a “salutary indication of what he can do.” The plaintiff is able to earn such an income in a very supportive environment working in the family business. Whilst he is no longer able to do unrestricted physical work because of his back injury, he does not suffer the requisite financial loss to bring a claim in this regard under the Act.

138       I accept that the plaintiff has all the assistance he requires in his present job. The business put on a dogman to help him and he does not have to do heavy work. He splits his time between light manual work operating a crane and administrative and marketing work. A special truck was purchased to help cope with his back pain. Taking into account these factors, and also the medical evidence, I believe the plaintiff would have difficulty obtaining similar employment in the wider job market.

139       I accept that because of his ongoing symptoms, the plaintiff, who is still a very young man, no longer has the ability to engage in heavy unrestricted work – a view supported by Mr King, Dr Lee and Mr Miller.

140       The plaintiff has continued to complain of back pain of varying intensity since the incident. He has problems sleeping. He has difficulty with prolonged standing, sitting and bending. His ability to lift is restricted.

141       Counsel for the defendants submitted that the lack of medical treatment received by the plaintiff did not support the plaintiff’s case that his impairment was serious.

142       Whilst it is not determinative of serious injury, lack of treatment is a matter to be taken into account when assessing the consequences of an injury to the plaintiff: See Dwyer v Calco Timbers Pty Ltd No 2 [2008] VSCA 260, at paragraph 24.

143       I do not accept that the lack of treatment indicates that the plaintiff does not continue to experience pain in his back. He has tried physiotherapy and it has not helped. Whilst there was some criticism of his lack of attendances at his doctor and the fact that he took his father’s medication at times, I accept that the plaintiff continues to require painkillers and sleeping tablets because of back pain.

144       In addition to his work restrictions, I accept that the plaintiff is precluded from engaging in a number of activities he previously enjoyed.

145       Most importantly, he effectively is unable to pursue the gym and boxing activities which he enjoyed prior to the incident and were a major part of his life. Because of his resulting loss of fitness and increase in his weight from 90 to 120 kilograms, he has lost self-esteem. His sister and friends have confirmed his inability to participate in these activities. I do not accept that in the absence of significant pain the plaintiff would face such restrictions and find himself in his current situation.

146       Further, the plaintiff is no longer able to enjoy other activities with his friends, such as camping, fishing and going on holidays. He no longer goes out as regularly to pubs or dances because of his pain and his problems standing. His social life is much quieter and he has less contact with his friends.

147       The plaintiff is also unable to engage in hobbies at home, such as woodwork and metalwork because of his difficulty working at bench height. The plaintiff also has difficulty performing personal hygiene tasks because of the bending involved.

148       Taking into account all these factors, I do not accept Dr Lee’s view that the plaintiff’s activities of daily life will not be much affected if he takes good care of his spine.

149       I accept that the consequences to this plaintiff of his low back injury, when judged by comparison with other cases in the range of possible impairments or losses of body function, may be fairly described as being more than significant or marked and at least being very considerable.

150       Accordingly, I grant the plaintiff’s application to bring proceedings for damages for pain and suffering.

- - -