Deankovic v Supreme Textile Pty Ltd
[2013] VCC 1249
•25 September 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-12-04694
| DRAGO DEANKOVIC | Plaintiff |
| v | |
| SUPREME TEXTILE PTY LTD (ABN 13 070 307 381) | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 and 19 September 2013 | |
DATE OF JUDGMENT: | 25 September 2013 | |
CASE MAY BE CITED AS: | Deankovic v Supreme Textile Pty Ltd & Anor | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1249 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Injury to the lower back – discal injury with sciatica – surgical amelioration – successful return to part-time modified work – film – creditworthiness and reliability – contrast between the plaintiff’s evidence of disablement and capacity demonstrated on film – use to be made of film
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b) and (38)(c)(f)
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170; Church v Echuca Regional Health [2008] VSCA 153
Judgment: The plaintiff’s claim for loss of earning capacity damages is dismissed. Leave granted to the plaintiff to recover pain and suffering damages arising out of his employment the first defendant.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R Middleton SC with Mr S Smith | Slater and Gordon |
| For the Defendants | Mr C Miles | Thomson Lawyers |
HIS HONOUR:
Introduction
1 Before the Court is an application brought by Originating Motion filed 25 September 2012. The plaintiff applies for leave, pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”), to bring proceedings to recover damages for injuries suffered by him arising out of or in the course of his employment with the first defendant.
2 The plaintiff seeks leave to bring such proceedings for pain and suffering and loss of earning capacity.
3 Mr R Middleton appeared with Mr S Smith of Counsel for the plaintiff, and Mr C Miles of Counsel appeared for the defendants.
4 The plaintiff submitted that he suffered a serious permanent impairment, or loss of the function of his lower back.
5 The following evidence was adduced during the hearing:
· The plaintiff gave evidence and was cross-examined;
· The plaintiff tendered his Court Book (“PCB”), pages 8-19, 33-99, and from the defendants’ Court Book (“DCB”) pages 4-5, 30, 241-255, 282, 292, 295, 298-299 and 301: Exhibit A;
· The plaintiff tendered two pages of the defendants’ surveillance logs: Exhibit B;
· Letter of the first defendant to the plaintiff’s solicitor: Exhibit 1;
· Film taken of the plaintiff on 11, 13 and 14 September 2012: Exhibit 2;
· Film taken of the plaintiff on 23 and 27 November 2012: Exhibit 3;
· Film taken of the plaintiff on 19, 23, 24, 29 and 30 April 2013: Exhibit 4;
· The defendants tendered their Court Book, pages 7-28, 48-72, 90-98, 136, 165, 168-170, 185-186, 198-189, 193, 270 and 303: Exhibit 5.
The statutory scheme
6 The application is brought under the definition of “serious injury” contained in ss(37)(c) of the Act which requires the plaintiff to prove that he has suffered a “serious permanent impairment or loss of a body function”.
7 The relevant considerations which apply to such an application are as follows:
(a) The plaintiff must prove that he suffered a compensable injury; that is, an injury which he suffered arising out of or in the course of his employment on or after 20 October 1999;[1]
[1]Section 134AB(1) of the Act ; Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph 11
(b) The injury and the impairment must be permanent; that is, permanent in the sense that it is “likely to last for the foreseeable future”;[2]
[2]Barwon Spinners, at paragraph 33
(c) The plaintiff bears the burden of proof to be determined upon the balance of probabilities. In addition to the general burden imposed, ss(19)(a), (19)(b) and (38)(e), impose a specific burden on the plaintiff in relation to a claim for loss of earning capacity;
(d) Sub-section (38)(c) provides that the impairment must have consequences in relation to pain and suffering and loss of earning capacity, which, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may fairly be described as being more than “significant” or “marked”, and as being at least “very considerable”;
(e) Sub-section (38)(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;
(f) Sub-section (38)(f) and (g) provide the formula to be applied by which a claim for loss of earning capacity is to be determined, save where the worker was under 26 years of age when the injury was sustained. In those circumstances, ss(38)(e) applies;
(g) Sub-section (38)(j) provides that the assessment of serious injury is to be made at the time of the hearing of the application;
(h) Sub-section (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;[3] an approach which I intend to follow in the appropriate case;
(i) 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 ss(38)(c). I have applied the principles set forth therein in reaching my conclusions in this application.
[3]Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170
The Plaintiff’s background
8 The plaintiff was born in December 1959. He is now 60 years of age. He is a single man. He was born in Croatia. He migrated to Australia in 1982.
9 After arriving in Australia, the plaintiff basically worked as a jockey to a truck driver, before working himself as a truck driver. He then worked as a courier, before taking up employment with the first defendant as a truck driver in 1996.
The First Defendant’s business
10 The first defendant conducts a recycling business. It places large steel bins at commercial premises in the suburbs into which it invites people to deposit unwanted clothing.
11 No evidence was given of the size of the steel bins. I viewed a large volume of film shown to the plaintiff which demonstrated the size of the bins. They appeared to me to be made of steel. They were probably about 1.7 meters in height, about 1.5 meters in width and about 1.5 meters in depth. There is a slot with a spring cover at the top of each bin. A person depositing unwanted clothing would push against the spring cover, opening the slot to deposit clothing into the bin. At the front of the bin is a locked door. It is through that door that access is gained by employees of the first defendant when they empty the bins.
12 The first defendant has several vehicles which are used in the conduct of its business. One is an Isuzu truck with an enclosed tray. Access is gained via doors at the back of the truck. Loading and unloading is undertaken using an elevator lift which can be raised and lowered at the back of the truck. Another is a VW van with a side sliding door. The first defendant has other vehicles which it is unnecessary to describe.
13 Before the plaintiff suffered injury he said that he worked as a truck driver. He would use the described vehicles to undertake pickups from the bins.
The Plaintiffs injury
14 On 12 January 2010, the plaintiff was undertaking a bin round. A sofa had been left near one of the bins. The plaintiff attempted to move it. As he did so he experienced the onset of pain in his lower back.
15 On 13 January 2010, the plaintiff experienced pain and spasms in his lower back. He also experienced pain in his left leg. He attended Dr Boltin, general practitioner, that day. He was referred to have a CT scan. According to Dr Boltin, it demonstrated a central and left-sided disc prolapse at L4-5 impinging on the left L4 nerve root. He was prescribed analgesia and anti-inflammatory medication.[4]
[4]PCB 54
16 The plaintiff played tennis before he was injured. He continued playing tennis after he was injured. On 25 January 2010, the plaintiff was playing a game of tennis. He bent over to pick up a tennis ball. He was met with severe pain in his lower back and left leg.
17 The plaintiff attended the Emergency Department of The Royal Melbourne Hospital on 25 January 2010. He was taken there by ambulance. He was admitted under the care of Mr Bittar, neurosurgeon. An MRI scan demonstrated a large extruded left paracentral L4-5 disc prolapse, which had migrated slightly inferiorly, causing significant compression on the left L5 nerve root.
18 Mr Bittar advised the plaintiff to undergo surgery. The surgery was undertaken on 1 February 2010. The surgery comprised a left L4-5 partial hemi-laminectomy, microdiscectomy and rhizolysis. A very large extruded disc prolapse was removed during the surgery. It would appear that Mr Bittar did not review the plaintiff after he was discharged from The Royal Melbourne Hospital until 23 August 2012.[5]
[5]PCB 60-61, 63-64 and 64B
19 It would appear that the plaintiff continued to suffer from some symptoms of pain in his lower back and left leg. He returned to see Dr Boltin. Dr Boltin referred the plaintiff to Mr Barrett, orthopaedic surgeon.
20 The plaintiff saw Mr Barrett on 19 January 2011. Mr Barrett reviewed scans undertaken at The Royal Melbourne Hospital. He referred the plaintiff to have a further MRI scan, which was undertaken on 2 March 2011.[6] Mr Barrett referred the plaintiff back to Mr Bittar. It would appear that he considered that the plaintiff might require further surgery because the MRI scan demonstrated disc abnormalities of L4-5 and L5-S1.
[6]PCB 50-51
21 The plaintiff was reviewed by Mr Bittar on 23 August 2012. The plaintiff told Mr Bittar that he had ongoing symptoms of pain in his lower back and worsening pain in his left leg. Mr Bittar recommended that the plaintiff have a further MRI scan. He discussed treatment options with the plaintiff which comprised re-doing the microdiscectomy with an interspinous distractor insertion, a lumbar fusion and a trial of the spinal stimulator. At the time of writing his report dated 23 August 2013,[7] he had not reviewed the plaintiff.
[7]the report is incorrectly dated 23 August 2012, at PCB 64A-64C
22 Despite not reviewing the plaintiff since 23 August 2013, Mr Bittar felt that he was in a position to say that the plaintiff was likely to be restricted in bending, twisting, prolonged sitting, repetitive pushing, pulling or lifting, forceful pushing or pulling, as well as repetitive or prolonged use of his lower back. He placed a rider on that opinion that he was unable to quantify the extent of those restrictions. He did not believe the plaintiff had a capacity to perform his pre-injury duties. He was not in a position to comment on the plaintiff’s current capacity for suitable work. He believed that the plaintiff would be restricted in his social, domestic and recreational activities. He considered that the plaintiff’s prognosis was poor.[8]
[8]PCB 64B-64C
23 The plaintiff went back into the care of Dr Boltin. In his report dated 29 May 2011, he noted that the plaintiff had returned to modified duties on 7 April 2010. The plaintiff was apparently feeling better. He was using analgesia on a daily basis. He was working about 10 hours per week. Dr Boltin also referred to the fact that the plaintiff had returned to The Royal Melbourne Hospital and had been reviewed as an outpatient. A further MRI scan was undertaken on 7 September 2011.[9] The clinical file of The Royal Melbourne Hospital has been included in the defendants’ Court Book.[10] It confirms that the plaintiff sought and obtained further treatment at The Royal Melbourne Hospital as described by Dr Boltin.
[9]PCB 52-53
[10]DCB 282-308
24 Dr Boltin provided a second report dated 7 July 2013. The plaintiff has continued to see him. He noted that the plaintiff continued to experience ongoing symptoms of pain, presumably in his lower back and left leg. He also noted that the plaintiff experienced severe exacerbations of pain from time to time. He diagnosed the plaintiff’s present situation as resulting from a discogenic back injury. He considered that the symptoms described by the plaintiff might result in the plaintiff needing further surgery. He considered that the exacerbations suffered by the plaintiff were largely without a trigger and could last from days to weeks.
25 Dr Boltin considered that the plaintiff was unfit for his pre-injury duties. He considered that he was fit to work 10 hours per week on modified duties. Those duties should not involve physically strenuous or repetitive tasks, and should allow for the plaintiff to move and rest at will. Likewise, he considered that the plaintiff was restricted in a range of social, domestic and recreational activities. He considered that the plaintiff’s prognosis was guarded.[11]
[11]PCB 57-59
The medico-legal opinions
26 The plaintiff was examined by Mr Doig, orthopaedic surgeon, on 4 March 2013;[12] by Dr Sutcliffe, occupational physician, on 6 February 2013;[13] by Mr Wallace, neurosurgeon;[14] by Mr Kudelka, orthopaedic surgeon, on 23 January 2011;[15] by Mr Troy, surgeon, on 17 July 2012[16] and by Dr Yong, occupational physician, on 22 May 2013.[17] The plaintiff was also examined by Mr Shannon, orthopaedic surgeon, on 21 July 2010.[18] His opinion has been overtaken by other events in the plaintiff’s treatment, which I think renders his opinion rather less useful.
[12]PCB 70-71
[13]PCB 77-91
[14]PCB 92-98
[15]DCB 52-54
[16]DCB 56-61
[17]DCB 62-72
[18]DCB 49-51
27 There appears to be unanimity amongst the medical practitioners that the incident caused the discal injury. With the exception of Mr Troy, it would appear that the other medical practitioners accepted that the discal injury is the cause of the plaintiff’s current complaints of pain and disablement, and is work related. However, the bending over undertaken by the plaintiff to pick up the tennis ball has been the subject of comment, for example, by Mr Troy and Dr Yong for the purpose of determining its place in the ultimate causation of the production of the plaintiff’s injury. I will return to that subject later.
28 In relation to the plaintiff’s capacity to return to work, it appears to me that the preponderance of the medical opinions is that he cannot return to his pre-injury work, but is fit for suitable modified duties.
Causation
29 Mr Miles submitted that the plaintiff did not give a history of the incident to Dr Boltin when he first saw him, and no history of the incident to attending medical practitioners at The Royal Melbourne Hospital. He submitted this raised doubt as to whether the incident is work related. Mr Miles also submitted that the plaintiff suffered the injury while playing tennis.
30 I am satisfied that the plaintiff did suffer the injury to his lower back when he was attempting to lift the sofa. The subsequent CT scan demonstrates quite serious discal abnormality at the level on which the plaintiff had surgery. When the plaintiff bent down to pick up a tennis ball, he was doing no more than a movement which most people would perform unconsciously at any stage of the day. It was not the cause of the ultimate disc injury. The lifting incident was the cause, and the bending merely precipitated the damaged disc extruding.
31 I am, therefore, not satisfied there is any merit in the submission made by Mr Miles on causation.
The Plaintiff’s case
32 The plaintiff swore two affidavits on 7 May 2012 and 19 August 2013.[19] The following is a summary of the pain and suffering consequences and loss of earning capacity consequences which the plaintiff says he has suffered:
[19]PCB 33-41
· Constant pain in his lower back. On good days the pain is an aching pain which he would rate at 5 out of 10. On a bad day he would rate it 10 out of 10. The pain radiates down the outside of his left leg and is associated with numbness and pins and needles;
· Jarring of his lower back can cause a significant increase in his pain;
· Significant restriction in using his back in a normal fashion. He has difficulty bending, twisting, crouching, squatting and kneeling. He is unable to sit or stand for prolonged periods of time without suffering an increase of pain in his lower back and left leg;
· Walking more than a couple of hundred metres or on stairs or uneven ground will worsen the pain in his lower back and left leg;
· Lifting or carrying objects more than 5 or 10 kilograms will create problems for him;
· A sensation of the need to more frequently urinate, and then not being able to;
· Significant interference in his ability to engage in sexual activity because of an inability to maintain an erection;
· Interference with sleep, and feeling tired in the morning;
· Requiring assistance from his daughter to undertake domestic work, for example, cleaning, vacuuming and mopping;
· An inability to engage in playing tennis, soccer, running or cycling. Also interference in his capacity to engage in his former activity of coaching a soccer team;
· A loss of interest in socialising;
· An inability to return to his pre-injury duties, and a limitation on being able to work only 10 hours per week;
· The need to use medication – Panadeine Forte, Endone, Nurofen, Panadol and Cymbalta; and
· The need to sometimes wear a lower back brace.
The films
33 The plaintiff was shown three videos taken of him performing work activities for the first defendant. The films were long and showed very much the same activity.
34 I think a fair, but general summary of what I saw on the films is as follows:
· The plaintiff drove the Isuzu truck and the VW van around the suburbs to places where the first defendant’s bins were positioned.
· The plaintiff opened the front door of bins. On some occasions he bent significantly at the back and removed individual items of clothing and plastic bags of clothing from the bins. On some other occasions he put bags of clothing through the slot in the bins, or put bags of clothing into the bins through the door.
· The plaintiff assisted another worker to manoeuvre bins across the tray of the Isuzu truck onto the elevator. He then assisted the other worker to put the bin onto a hand trolley. He then helped the other worker to manually manoeuvre the bin into position. He then helped the other worker to do the reverse, that is, remove an old bin and put it into the Isuzu truck.
35 The summary I propose to give of the films must be seen in the context of the matters deposed to by the plaintiff in his affidavits, and the histories he gave to medical practitioners of the pain and disablement he suffers.
36 The plaintiff was asked a number of times about the hours he has worked. Before the films were shown he said that he works about 2 hours each day, five days per week, making a total of about 10 hours per week. He said that he is mainly involved in supervisory work. He is often at home waiting for telephone calls from the first defendant or from workers. The impression I obtained from his evidence in that regard is that he was something of a trouble-shooter. He would organise work to be done, how it was to be done, and by whom, as the need arose for him to intervene in that respect. He also said that on some occasions he would use a vehicle to drive to various places where assistance was needed.
37 Mr Miles took the plaintiff to the payroll advices of the first defendant for periods in 2012 and 2013.[20] The plaintiff was working 6 hours per week between the pay periods of 25 June 2012 and 24 September 2012. Thereafter, his hours increased to 10 hours. It would appear that he has continued to clock up 10 hours per week since 24 September 2012.
[20]DCB 7-28
38 The films give a very different picture of the hours the plaintiff works, the extent to which he has free and unrestricted movement of his lower back, and the capacity to engage in light to moderately strenuous activity. It is in stark contrast to what the plaintiff deposed to in his affidavits and the oral evidence he gave before the films were shown. The impression I was left with before the films were shown, is that he is a man quite seriously affected by lower back and left leg pain, to the extent that his capacity to engage in social, domestic and recreational activities have been reduced to a relative minimum He is able to work, except it must be very light work.
39 The first film was taken on 11 September 2012. My summary of the more relevant parts is as follows:
· Between about 10.36am and 10.49am, the plaintiff was seen entering and exiting the Isuzu truck;
· At about 10.52am, the plaintiff and another worker manually manoeuvred an empty bin from the tray of the truck via the elevator to the ground. The plaintiff manually assisted the other worker to place it on a hand trolley;
· At about 12.46pm, 12.49pm, 1.16pm and 1.20pm, the plaintiff and the other worker repeated the same process which they performed at 10.52am.
40 It is always difficult to describe what is demonstrated on film in reasons for judgment. The foregoing summary needs some fleshing out, as do the summaries which I will set out below. The films essentially showed the plaintiff manually manoeuvring empty bins from the truck, into a position at a site manually. It showed him removing older bins, which were then placed in the truck. He took hold of the side of the bins on each occasion, and with the other worker, pushed and pulled the bins, exerting some physical force. He did not appear to have any difficulty doing that work.
41 The next film was taken on 13 September 2012. My summary of the more relevant parts is as follows:
· The film commenced at about 8.38am. It showed the plaintiff with the Isuzu truck;
· At about 8.54am, the plaintiff walked to a medical clinic;
· At about 10.30am, the plaintiff manually manoeuvred a bin with another worker.
42 The next film was taken on 14 September 2012. My summary of the more relevant parts is as follows:
· At about 10.43am, the plaintiff bent to about 45 degrees at the open door of a bin;
· At about 10.52am, the plaintiff bent fully at the back and the side of the bin, and about a minute later did the same;
· At about 12.22pm, the plaintiff was at a BP service station. He was there until about 12.55pm. At first he bent fully at the back on two occasions at the open door of a bin. A few minutes after 12.22pm, he repeated a bend on two further occasions;
· Between 12.28pm and 12.40pm, the plaintiff held open a large bag at various times while the other worker was in the bin using a spade to remove rubbish;
· At about 12.43pm, the plaintiff stood at the back of the truck. He leaned forward into the tray of the truck and used the bag to sweep the floor of the truck;
· At about 12.48pm, the plaintiff manoeuvred a bin with the other worker from where it was positioned into the truck; and
· At 2.03pm, the plaintiff was seen walking casually into a shop. The film ended at 2.27pm.
43 The next film was taken on 23 November 2012. My summary of the more relevant parts is as follows:
· At about 10.08am, the plaintiff walked from a truck to a medical centre;
· At about 11.00am, the plaintiff parked the truck. He began unloading a bin. It appeared to me he was doing it item by item manually. He was bending perhaps about 30 degrees at the back while doing that;
· Between 11.18am and 11.48am, the plaintiff was at a site where a bin was positioned. For some of that period he unloaded a bin. It appeared to me he was doing it item by item, manually bending slightly;
· At about 12.33pm, the plaintiff was at a bin. He bent fully at the back on two occasions – on one occasion to unlock the bin, and on the other occasion to enter the bin through its open door;
· At 12.35pm, the plaintiff was at the same bin. He bent fully at the back on one occasion;
· At about 12.44pm, the plaintiff went to another site where a bin was positioned. He bent fully at the back on two occasions – on one occasion to unlock the bin, and on the other occasion to enter the bin through its open door;
· At about 12.51pm, the plaintiff bent at the back, took hold of a TV which had been dumped in front of a bin, and manoeuvred it to his left out of the way;
· Between 1.02pm and 1.09pm, the plaintiff was at the same bin and was seen bending slightly;
· At about 1.42pm, the plaintiff went to another site where a bin was positioned. He bent at the back fully on a number of occasions, picking up items of clothing which had been left on the ground around the bin;
· At about 2.29pm and at about 2.40pm, the plaintiff went to other sites where bins were positioned. At both sites he was seen bending at the back.
44 The next film was taken on 27 November 2012. It commenced at 9.34am and concluded at 12.41pm. There was nothing of substance shown in the film.
45 The next film was taken on 19 April 2013. It commenced at 10.30am. It was seconds long. There was nothing of substance shown in the film.
46 The next film was taken on 23 April 2013. My summary of the more relevant parts is as follows:
· At about 9.57am, the plaintiff was seen driving the VW van with another man. They both emptied a bin. The plaintiff bent at the back repeatedly;
· At about 10.09am, the plaintiff went to other sites where bins were positioned. He bent fully at the back. The balance of the relevant parts of the film show him at bins at 10.47am, 10.57am, 12.22pm, 1.35pm, 1.57pm and 2.25pm, which is when the film ended. On each occasion he was seen bending at the back.
47 The next film was taken on 30 April 2013. The film commenced at about 10.40am and ended at about 12.20pm. It showed the plaintiff working, but most the time he was either talking to another worker or walking around casually.
48 Mr Miles cross-examined the plaintiff after the film taken on 14 September 2012 was shown. The plaintiff admitted that he had worked up to 8 hours per day. It was my impression from the way in which the plaintiff chose to answer questions about how long he worked each day, that he worked 8 hours per day sometimes.
49 Mr Miles cross-examined the plaintiff again after the film taken on 27 November 2012 was shown. The plaintiff admitted that he had engaged in the work shown on the films up to that date over the preceding two years. However, it was again my impression from the way the plaintiff chose to answer questions of that kind that he worked eight hours per-day sometimes.
50 Mr Miles cross examined the plaintiff again after the film taken on 30 April 2013 was shown. It was my impression that the plaintiff gave similar answers to the answers he gave relevant to the earlier films.
Findings
51 The films demonstrate that, at least between 23 November 2012 and 30 April 2013, the plaintiff has worked more than 2 hours per day, and on occasions has worked up to 8 hours per day. That is in stark contrast to the payroll advices which I referred to earlier which have the plaintiff working 10 hours per week. On that score the plaintiff has simply not told the truth. I think it is likely that the plaintiff has worked reasonably often in the work shown on the films – driving a truck or van; replacing bins at various sites where they have been positioned; emptying bins, and checking bins.
52 What is readily apparent from the films is that the plaintiff is able to stand, walk and bend without any apparent restriction. They show him standing for considerable periods of time. They show him walking for considerable periods of time. They show him being capable of bending fully and freely without any apparent restriction. A comparison with what is shown on the films with my summary of the plaintiff’s pain and suffering consequences and loss of earning capacity consequences in paragraph 23 above, demonstrates that the plaintiff does not experience all of the restrictions on his capacity to function that he alleges.
53 In the face of the plaintiff’s apparent full, free and unrestricted capacity to at least stand, walk and bend, as he was shown to do in the films, it is difficult to understand how it is he can validly maintain that he has constant pain, with good days and bad days; that he cannot tolerate jarring; that he has difficulty bending, twisting, crouching, squatting, sitting and standing; that he cannot walk more than a couple of hundred metres or on stairs or on uneven ground; that he cannot lift or carry objects of more than 5 or 10 kilograms; that he cannot undertake his domestic tasks; that he cannot socialise, and that he is limited to working about 10 hours per week.
54 Furthermore, the plaintiff left all of the examining medical practitioners with the strong impression that he is quite seriously disabled. A comparison between the histories taken by those medical practitioners with the films demonstrates that the histories the plaintiff gave are an exaggeration. It seriously undermines the reliability of all of those medical opinions. As an example, Dr Yong was of the opinion that the plaintiff has a capacity to perform work with restrictions – avoiding repeated bending and twisting of the back; firm pushing or pulling; vary posture regularly between sitting, standing and walking; and lifting more than 4 kilograms on a repeated basis. The films demonstrate that the plaintiff is capable of repeated bending and twisting of his back; has engaged in pushing or pulling of bins; has been able to sit in the truck and van when driving for significant periods of time; has been able to stand and walk for considerable periods of time, and has been able to lift and carry objects. However, it is not possible to determine whether what I saw him lifting and carrying in the films was more than 4 kilograms or not, but he was certainly able to lift on a repeated basis.
55 Mr Middleton submitted that I should exercise real caution in how I considered the impact of the films on the plaintiff’s creditworthiness and reliability, because of what Ashley JA observed in Church v Echuca Regional Health.[21] The particular observations of his Honour concerned the impact films have on a plaintiff’s creditworthiness and reliability, and what a judge at trial is to make of those films when they have not been shown to medical practitioners to determine whether they would have expressed a different opinion.
[21][2008] VSCA 153
56 The submission made by Mr Middleton has merit in a general sense, but not in this case. There are instances where the films are at such odds and in such contrast to a plaintiff’s evidence and the histories relied upon by examining medical practitioners, that they are capable of undermining not only the plaintiff’s evidence, but the very basis upon which medical practitioners expressed an opinion. I think this is one of those cases.
57 Mr Middleton also submitted that it is obvious that examining medical practitioners rely on the histories they obtain from plaintiffs, but what is also important is their examination and inspection of radiology and scans. I do not doubt that those three parts of the attention given by an examining medical practitioner are important. However, a history obtained by an examining medical practitioner is critically important. The history will disclose, among other things, the mechanism of the injury; an understanding of the degree of the injury suffered, and if the consequences informed by the plaintiff are consistent with the gravity of the injury. To submit that the histories are unimportant, or are in some way inferior to other parts of the process undertaken by examining medical practitioners, is, in my opinion, wrong. In this case, it is quite clear that the examining medical practitioners obtained histories from the plaintiff for the very purpose of understanding the mechanism of the injury and its consequences, in order to aid them in expressing their opinions.
58 Mr Bittar and Mr Barrett accepted the plaintiff’s complaints at face value. Understandably, having done so, and being armed with the latest scans, the medical practitioners proposed that the plaintiff was a candidate for more radical surgery. It appears to me that the histories on which they based their opinions are no longer reliable, and hence their opinions are of diminished value regarding the nature and extent of the plaintiff’s present lower back injury, and what treatment he may require in the future.
Pain and suffering
59 I accept that the plaintiff suffered discal injury which required the surgery performed by Mr Bittar. I accept that there was a period when the plaintiff was unable to work. I do not accept that the plaintiff is limited to part-time work. I do not accept that the plaintiff is incapacitated for all of his pre-injury work. The films demonstrate he has been able to and is now working a full day sometimes driving the truck and the van in undertaking all of the operations required of him by the first defendant.
60 I consider that the plaintiff's creditworthiness and reliability is so seriously undermined by what I have seen in the films, that it is very difficult for me to accept much of what he says about the pain and suffering consequences.
61 The plaintiff continues to see Dr Boltin, who presently prescribes him medication for pain relief. The plaintiff takes two Panadeine Forte in the morning, and occasionally more during the day. He takes one Endone in the morning. He takes one Cymbalta in the morning. He takes Nurofen and Panadol, although it was difficult to understand when and in what circumstances he takes that medication. I accept the plaintiff’s evidence that he takes that medication because it is confirmed, to some degree, by Dr Bolton, who said that he has treated the plaintiff with prescriptions for analgesic and anti-inflammatory medication.[22]
[22]PCB 58
62 Although I do not accept that the plaintiff suffers the consequences referred to in paragraph 23 to the extent described by him, I do accept that he suffered a very painful and disabling injury to his lower back which required surgery. I accept that he took some time off work and attended outpatient treatment at The Royal Melbourne Hospital, before he reached the point where he has apparently been able to tolerate his injury and its consequences. I infer that now that he has a more vulnerable lower back which impairs the function of his lower back to some extent, and is likely to make some aspects of his social, recreational and domestic life somewhat difficult. I accept that he takes medication to maintain his level of the capacity as I have observed it to be in the films. I accept that the plaintiff was keen on soccer and had coached. I accept that his capacity to return to a very vigorous sporting activity of that kind is unlikely.
63 I have considered that even though I have made findings regarding the plaintiff’s creditworthiness and reliability which are adverse to him, that cannot be the end of the matter. To borrow an expression used by Mr Miles, the presence of films, which does impact upon the creditworthiness and reliability of the plaintiff, does not mean that I ‘throw the baby out with the bathwater’. I consider that it is my obligation to determine what I do not accept, and then to determine what I do accept. I must then ask whether the consequences which I do accept arise from the impairment of the function of the plaintiff’s lower back, and whether the consequences are “serious”.
64 I am satisfied that the consequences which I have set out in paragraph 62 above have altered the plaintiff’s capacity to function physically to such an extent that they do qualify as pain and suffering consequences which meet the statutory test.
Loss of earning capacity consequences
65 There are some very strange features to the plaintiff’s claim that he has suffered loss of earning capacity consequences which are “serious”.
66 Firstly, the plaintiff claims that he is only capable of working about 10 hours per week, but he recanted significantly when he was shown the films. However, I am left with a real sense of uncertainty about what the plaintiff’s evidence really is, given his concession that sometimes he is able to work up to 8 hours per day. He conceded that the films demonstrate that what he deposed to in his affidavits is untrue regarding his capacity to work. However, he also qualified it on a number of occasions that he is still limited to working about 2 hours per day. I am really not sure what to make of his evidence.
67 Secondly, although the plaintiff has been noted in the payroll advices to be working 10 hours per week, he is being paid his full wage. For example, as at 24 June 2013, he was in receipt of $837.35 gross per week. If he is only working about 10 hours per week at an hourly rate of $18.68, that amounts to $186.80.[23] The plaintiff did not explain how it is that he is so unproductive, but is being paid a full wage as if he is fully productive.
[23]DCB 22
68 Thirdly, in a letter from the first defendant dated 10 July 2013, the plaintiff was informed that the “topping up” of his wages would be reduced from $650 per week to $450 per week. Then, in a letter from the first defendant dated 13 September 2012 to the plaintiff’s solicitor, the first defendant informed the plaintiff’s solicitor that it intends to put the plaintiff on a performance basis, which will mean that he will be paid for the work he performs, and according to the letter, for 8 to 10 hours per week.
69 Fourthly, no explanation has been offered by the plaintiff why he is paid top-up pay. The plaintiff did not choose to cross-examine Mr James Lawler, the managing director of the first defendant and the author of the two letters, to determine the basis upon which the plaintiff has been paid his full wage.
70 It seems to me that there are a number of mysteries about this proceeding that neither the plaintiff nor the defendants were prepared to demystify. What I am left with is a serious level of uncertainty about whether the plaintiff is actually now working full time, or sometimes working full days, or working on some other basis. The plaintiff’s own evidence was, as I have already observed, difficult to follow. He was asked repeatedly to describe the hours he works, but when I have examined the transcript, I am left with serious doubt about his answers and what they amount to.
71 Mr Middleton submitted that I should accept that the plaintiff is paid $837.35 gross per week. I should also accept that he will be paid $450 per week. The latter figure as a percentage of the former figure is 53.74 per cent. I think that thesis is utterly artificial. It is not based upon what the plaintiff is capable of earning from personal exertion, but based upon a fiction created by the first defendant to pay the plaintiff’s full wage, despite the fact that he is apparently not being paid in accordance with performance.
72 The formula for the purpose of determining loss of earning capacity consequences is a relatively straightforward one. It is for the plaintiff to adduce evidence in accordance with ss(38)(f) of the Act. The plaintiff has established that his earnings which most fairly reflect his earning capacity is in the year ending 30 June 2009. He earned $59,564 gross for this period. However, to persuade me that he has suffered the requisite degree of loss of earning capacity he must then demonstrate what he is capable of earning now. The uncertainty about his evidence does not permit me to determine the hours he is working and the gross income he is earning, or is capable of earning.
73 I must say that I am not convinced that the plaintiff has been truthful regarding his capacity for work with the first defendant. The inference capable of being drawn is that if he can work so extensively on the days shown in the films, that it demonstrates a capacity to work a full day, and moreover, that he likely to be occupied far more often than he was prepared to concede in his evidence. I think the plaintiff’s claim for loss of earning capacity consequences must fail.
Orders
74 On the basis of the foregoing reasons, findings and conclusions, I grant the plaintiff leave to bring a proceeding at common law pursuant to s134AB(16)(b) of the Act to recover damages for injuries for pain and suffering arising out of his employment with the first defendant.
75 After discussion with counsel, I will pronounce formal orders and will hear the parties on the question of costs.
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