Dinh v Victorian WorkCover Authority

[2021] VCC 2069

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No. CI-20-01718

VAN NGAN DINH	Plaintiff
v
VICTORIAN WORKCOVER AUTHORITY	Defendant

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JUDGE:	HIS HONOUR JUDGE BROOKES
WHERE HELD:	Melbourne
DATE OF HEARING:	16 March 2021
DATE OF JUDGMENT:	21 December 2021
CASE MAY BE CITED AS:	Dinh v Victorian WorkCover Authority
MEDIUM NEUTRAL CITATION:	[2021] VCC 2069

REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION

Catchwords:               Serious injury – two separate injuries: right hip and back – pain and suffering and loss of earning capacity

Legislation Cited:      Workplace Injury Rehabilitation and Compensation Act 2013, s325

Cases Cited:Petkovski v Galletti [1994] 1 VR 436; Richter v Driscoll [2016] VSCA 142; Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170

Judgment:                   Leave granted for pain and suffering damages and loss of earning capacity damages.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A Macnab SC with Mr C Sidebottom	Slater and Gordon
For the Defendant	Mr A W Middleton	Russell Kennedy

HIS HONOUR:

1This application is brought pursuant to s335(2)(d) of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) for leave to claim damages at common law for both pain and suffering and economic loss in relation to injuries to the right hip; alternatively, the lumbar spine; alternatively, both.

2The back injury is alleged to have occurred throughout the course of the plaintiff’s employment with Schreurs & Sons (“the employer”) from approximately January 2011 until August 2014 due to the nature of the employment involving heavy lifting and bending.

3The right hip injury is alleged to have occurred as a result of a fall in the course of the plaintiff’s employment in approximately July 2014, when he fell while standing on a tracker to the ground, injuring his right hip.

The Issues

4The defendant identified the following issues:

(a)   whether the right hip injury occurred in the course of the plaintiff’s employment as a result of a fall as alleged;

(b)   if the plaintiff injured his right hip as alleged, whether the consequences of the impairment resulting from the injury to the right hip are more than “significant” or “marked” and are at least “very considerable” so as to meet the statutory test of “serious injury”;

(c)   whether the plaintiff has a capacity for suitable employment on account of the right hip injury;

(d)   whether the back injury can be “disentangled” from injury to the back suffered by the plaintiff prior to January 2011; alternatively, October 2010;

(e)   whether the consequences of the impairment resulting from the alleged back injury, when looked at separately from the right hip injury, meet the statutory test of “serious injury”; and

(f)    whether the plaintiff has a capacity for suitable employment on account of the back injury when assessed separately from the right hip injury.

The legislation

5The plaintiff is required to prove that he suffered a “serious injury” within the meaning of paragraph (a) of the definition of that term in s325(1) of the Act as a result of either of the two injuries. Paragraph (a) provides that a “serious injury” means “permanent serious impairment or loss of a body function”.

6As the plaintiff has alleged two separate compensable injuries, I am required to determine the applications in the following manner:

·        First, I am required to identify each injury.

·        Secondly, I should alienate the impairment consequences of each injury.

·        Thirdly, as the two injuries affect two different bodily impairments, the consequences cannot be accumulated.  Each injury has to satisfy the requirements of a “serious injury” in its own right, rather than in combination with the other injury.

Background

7The plaintiff was born in Vietnam in May 1969 and is aged fifty-two.  He completed Year 10 at secondary school in Vietnam and then worked on a farm for about three years.  He moved to Malaysia as a refugee when he was about nineteen years of age, before migrating to Australia in 1990.

8Since arriving in Australia, he has essentially undertaken farm work.

9He has had two periods of employment with the employer in this action, Schreurs & Sons.  He first worked as a casual harvesting and packaging worker from about March 1998 to November 2004.  He then returned to Vietnam, where he lived for a period of about twelve months, and came back to Australia and undertook casual farming work.  Thereafter, he recommenced employment with the employer in October 2010.  Initially, he was a casual employee.  By January 2011, he was working full time as a harvesting and packaging worker.

10The plaintiff alleges he was required to stack boxes of produce and put them onto pallets, often at awkward heights.

11Part of the process was that workers would stand on a flat tray of a machine known as a “tracker”, where they would be stacking boxes.  The tracker sits at about a metre or 1.5 metres above the ground, and it is alleged the workers stacked the boxes repetitively on the back of the tracker while standing on the flat bed.

12It is alleged, at times, they were having to stack boxes above shoulder height, and then below knee height, when they were at the bottom level of the pallet.  The work was said to be fast-paced and physical.  There was a lot of bending, lifting, twisting and squatting.

13The second period of employment ended in August 2014.

14It was conceded by the plaintiff that he had a history of experiencing low-grade backaches from time to time before this second period of employment, which were said to be generally short-lived.  It was conceded that the plaintiff had suffered from disc degeneration at least at L3‑4 from February 1999 and onwards.

15It was also alleged that the plaintiff started to develop low-back pain after commencing a second period of employment, and underwent an x‑ray and CT scan in August 2011, which purportedly revealed bulges at L3‑4 and L4‑5, as well as spinal canal stenosis.

16It is then alleged that, in the course of his employment in the first half of July 2014, the plaintiff slipped on the wet surface of the flatbed of the tracker and fell heavily to the ground, landing on his right hip and back, falling from a height of 1 to 1.5 metres.

17The plaintiff alleges that after this fall, he attended a general practitioner, Dr Ho, at Wellcare Medical Clinic, where he complained of right hip and thigh pain.  This occurred on 18 July 2014, and he was prescribed Voltaren.[1]

[1]Exhibit X

18Thereafter, the plaintiff attended Dr Ngoc Le at the Athol Road Medical Centre, and he was prescribed stronger pain relief consisting of Tramal.  He underwent an x‑ray of his spine which reported degenerative disc disease, and was further prescribed Mobic.

19Thereafter, the plaintiff continued at work, despite experiencing back and hip pain, until he was certified off work by Dr Le on 23 August 2014.

20Upon ceasing work, the plaintiff travelled to Vietnam in September 2014, returning to Australia in November 2014.  He resumed treatment with both Dr Ho and Dr Vu, general practitioners.  Dr Vu arranged for the plaintiff to have an x‑ray of his pelvis and right hip on 5 December 2014, and, thereafter, a CT scan of his right hip on 8 December 2014, followed by an MRI scan of the hip on 16 December 2014.

21The plaintiff attended the Emergency Department of the Dandenong Hospital on 17 December 2014 due to right hip pain.

22The plaintiff then made a claim for WorkCover dated 5 January 2015.[2]  The claim, in its terms, cites a back and right hip and leg injury due to general aggravation, and does not mention the fall; however, in the employer’s report, witnesses are cited as the supervisor, Mr Long, and a witness, “Mr Cuong”.

[2]Exhibit 2

23In an affidavit sworn 12 March 2021, fellow-worker, Mr Cuong Hung Tran, swore that he witnessed the fall from the tracker in about July 2014.[3]  Mr Tran was not cross-examined.

[3]Exhibit B

24Ultimately, the plaintiff came to surgery by way of total hip replacement on 25 May 2015, and continues to suffer symptoms referable to both his right hip and back.

25Ultimately, the plaintiff alleges that his background is of a non-English-speaking Vietnamese farm worker who has always relied on his ability to undertake manual-type work.  He has been a farmhand for the majority of his working life, and it was ultimately submitted that, as a result of the right hip injury on its own, he has no capacity for suitable work, and, secondly, that as a result of the back injury on its own, he has no capacity for suitable employment.

The Plaintiff’s evidence

26The plaintiff swore two affidavits in the proceeding, dated 12 December 2019 and 11 March 2021.[4]  In his first affidavit, the plaintiff swore that prior to working for the employer, he had undertaken farm work for many years, and as a result of the heavy nature of the work, he had felt some occasional aches and pains in his back, in respect of which he saw a general practitioner as required:

“These episodes generally cleared up quite quickly and I do not recall requiring any significant time off work.”[5]

[4]Exhibit A

[5]Plaintiff’s first affidavit, dated 12 December 2019, paragraph 7

27The plaintiff described his role as a harvesting and packaging worker as follows:

“I had to repeatedly pack celery into boxes and lift and stack those boxes up onto pallets.  Often these boxes needed to be stacked at awkward heights and on to pallets that were on the back of a ‘tracker’, a vehicle that took the boxes of produce that had been packaged at the harvest site back to the packing shed.  It was physical, labour intensive work and it placed considerable strain on my back.

During 2011, I recall developing increasing back pain as a result of my normal work duties.  As a result, I attended a general practitioner, Dr Kim Son Vu, on 22 August 2011 in relation to my increasing back pain.  I have a vague recollection of being referred for a CT scan on my back around that time.

Over the next few years my back condition waxed and waned.  From time to time, I experienced flare ups of back pain, but I largely tried to self-manage my condition and I continued on at work as best I could.  Over time though my back became increasingly stiff and sore.

As a result of my persisting symptoms, I began wearing a lower back brace at work from time to time during 2013 and 2014.  This helped provide some additional support for my back and allowed me to continue on working.

By mid 2014, I was really struggling. My back pain was becoming increasingly severe and I also noticed the onset of referred pain into my right leg.  This caused me to limp sometimes and caused me considerable difficulty when undertaking heavy lifting at work.”[6]

[6]Plaintiff’s first affidavit, dated 12 December 2019, paragraphs 8-12

28The plaintiff described his right hip injury as follows:

“In or about July 2014, I developed worsening pain in my right hip and leg after an incident at work.  On that day, I was standing upon the flat bed of the tracker whilst lifting boxes of celery from the conveyor line onto the tracker.  The surface that I was standing upon was wet because it had been washed down earlier and also because the tracker was used to convey water to the harvester for crop washing.  Whilst I was loading boxes on to the pallets on the tracker, I slipped on the wet surface of the flat bed.  This caused me to fall heavily onto the ground and I landed on my back and right hip.

After my fall, my hip was quite sore. A co-worker, Cuong, came over to assist me but I was able to get myself up.  Afterwards though I did have a bit of a limp. At first, I took a short break while I tried to regain my composure. I then tried to get back to work, although I remained pretty sore for the rest of that shift.

Over the next couple of weeks, my back and right leg were causing me increasing problems.  As a result, on 24 July 2014, I attended a general practitioner Dr Ngoc Le and he prescribed me some Tramal to help with my pain.  I attended him again seven or eight days later due to worsening back pain. By that stage, I was limping more and more due to the referred pain down my right leg and my right hip problems.  I was referred for an x‑ray on my back on 2 August 2014 but I understand that was not reported to show any fractures.

Although I tried to continue on at work, by late August 2014, I found myself unable to complete my previous duties. I returned to see Dr Le and he gave me some Mobic to help with my pain.  Eventually though, I found that I could not continue at work and Dr Le recommended I take some time off work and start seeing a physiotherapist.”[7]

[7]Plaintiff’s first affidavit, dated 12 December 2019, paragraphs 13-16

29After ceasing work, the plaintiff travelled to Vietnam for a couple of months, and alleged that he continued to suffer from back and right hip symptoms.  When he arrived back in Australia, he consulted Dr Vu for persisting low back and right hip problems, and underwent an x‑ray of his pelvis and right hip on 5 December 2014, and thereafter, a CT scan on 8 December 2014, followed by an MRI scan on 16 December 2014.[8]

[8]Plaintiff’s first affidavit, dated 12 December 2019, paragraphs 19-20

30The plaintiff swore that he understood the MRI scan to –

“… show a fracture in my hip and some avascular necrosis and labral tearing in my hip.  The following day, I attended the Emergency Department at the Dandenong Hospital due to the severe pain I was experiencing in my hip.”[9]

[9]Plaintiff’s first affidavit, dated 12 December 2019, paragraph 20

31The plaintiff stated that he had been reluctant to lodge a WorkCover claim while working, but once he realised the seriousness of his injury, he eventually lodged a claim on 5 January 2015.  The claim was rejected by the insurer.[10]

[10]Plaintiff’s first affidavit, dated 12 December 2019, paragraph 21

32Thereafter, his progress was described as follows:

“Throughout early 2015, I remained troubled by significant problems in my right hip and lower back.  I was limping more and more and having difficulty with prolonged periods of sitting, standing and any physical activities.  I attended the Orthopaedic Department at the Dandenong Hospital and underwent further x‑rays which confirmed some damage to my right femoral head. Around that time, I saw a specialist orthopaedic surgeon and he told me that I needed surgery.

On 22 May 2015, I underwent surgery on my hip. I understand that this involved a total right hip replacement operation and was performed by Mr Swan. After that operation, I undertook rehabilitation and physiotherapy. I gradually regained some strength and improved function in my right hip.  It took me some time to regain my mobility but gradually I was able to get back on my feet.

Over the next couple of years, the really sharp pain in my right hip did settle down. Nonetheless, I continued to have some aching pains in my hip as well as my right groin. My hip pain seemed to flare up with any extended periods on my feet.  Prolonged periods of walking or physical activity generally aggravated my pain. I also had trouble bending and negotiating uneven ground.  I managed my injury with regular exercises and occasional acupuncture sessions.”[11]

[11]Plaintiff’s first affidavit, dated 12 December 2019, paragraphs 22-24

33With respect to his back, the plaintiff swore:

“During this time, my back also remained problematic.  The acupuncture did help my back a little bit, and I tried to be watchful of my level of activity in order not to aggravate my back problems.  Nonetheless, I remained heavily restricted.”[12]

[12]Plaintiff’s first affidavit, dated 12 December 2019, paragraph 25

34As to his then current status, the plaintiff swore:

“At present, I remain off work.  I have not been able to work in any capacity since August 2014. I have survived financially by living off a payment from my superannuation fund and the support of my wife, who has continued to work.

Currently, I continue to be troubled by problems in my right hip and back on a daily basis.  Whilst the surgery on my hip has certainly helped reduce my pain levels, it has not completely removed it.

I continue to experience discomfort in my right hip most days.  I typically experience a dull aching pain within my right hip joint which occasionally radiates into my right groin.  When I am at rest, the pain is typically not too bad, but I find that prolonged periods of being on my feet tends to stir up the pain. If I walk for much more than 20 minutes, my hip gradually begins to stiffen up and become sore.  Similarly, if I sit or stand in the one position for too long, I also feel my hip stiffen up and begin to ache.  Heavy lifting or physical activity also seems to aggravate my hip.  The more I try and do, the more I seem to pay for it afterwards with a flare up in hip pain.

Similarly, my back continues to remain rather stiff and tight.  I have fluctuating lower back pain which is largely activity dependant.  The pain in my back is typically a nagging ache however it can become a throbbing and stabbing pain when my pain levels flare up.  Again, the more I do the more my back seems to flare up.  Activities that involve bending, twisting or too much lifting seem to aggravate my back.

Over the past couple of years, I have continued to have good days and bad days.  On a good day, I like to try and go for a walk to maintain some flexibility in my back and stop it becoming too stiff.  On a bad day though, when my back pain is really flaring up, I spend most of my day at home resting.

In order to manage my pain, I take Panadol as required.  I have in the past used heavier, prescription medications, but I did not want to become hooked on those. The amount of Panadol I take varies from day to day depending on my levels of pain. During flare ups, I also use anti-inflammatory cream which I apply to both my back and right hip.

I continue to attend my general practitioner, Dr Vu, in Springvale once or twice per month.  I also have acupuncture therapy on both my hip and back every two to four weeks.

Since sustaining injuries to my back and hip, my mobility has been affected.  Long walks can aggravate my hip and back pain but I particularly struggle with steps, stairs and uneven ground.  Walking over sand at the beach, stepping off gutters and steps, all seems to aggravate my injury.

I also find sitting for long periods particularly uncomfortable.  For instance, sitting down to watch a lengthy movie or television show, or sitting down with my family for a long meal can cause my back and hip to become stiff and sore.  This also causes me some problems with driving or sitting as a passenger in a car on long road trips.  I typically require regular rest breaks so I can get out and stretch my back and hip.

At home, my injuries have limited what I can do around the home.  I have really struggled to perform maintenance activity and gardening around the house.  I find that I struggle working in the garden because I have difficulty with squatting, kneeling and crouching.  This is a particular problem when trying to weed the garden or tend to my plants.  I also find mowing and cleaning up the grass clippings to be particularly uncomfortable due to the bending involved.

As a consequence of my injuries, I have become increasingly reliant on my wife to perform most of the housework.  Similarly, I have become more and more reliant on her to do most of the shopping.  I find walking around markets and large shopping centres to be uncomfortable as l am often left very sore afterwards

I now try and avoid any high impact activities that involve jumping, running or hopping.  I also try and avoid activities that involve too much climbing, crawling or crouching.  Each of these tasks cause a flare up in my pain. I struggle bending down to pick things up off the ground these days and I feel like my back and right hip have left me feeling rather deconditioned.

My injuries have had a major impact on my financial situation. In the three years prior to my injuries, I was able to work full time and I regularly earned in excess of $50,000 per annum.  By reference to my 2012, 2013 and 2014 income tax returns, I earned $52,413, $50,061 and $52,617 in the three years prior to my injury.  Had I not been injured at work, I believe that I would now be capable of earning closer to $60,000 per annum. Unfortunately, with my back and right hip the way they are now I do not believe I could return to my pre-injury employment.

I am very concerned and anxious about the future. I have limited English skills and poor education.  I have never worked in an office environment and I have spent most of my life performing manual work on farms.  I do not believe I could return to the type of work I have done before and I cannot think of a job I could currently perform on a consistent and reliable basis the way my back and right hip problems are.”[13]

[13]Plaintiff’s first affidavit, dated 12 December 2019, paragraphs 26-39

35In his second affidavit, sworn 11 March 2021, the plaintiff confirmed he had attended Dr Ho on 18 July 2014 due to pain in his right hip and thigh which “was being aggravated by movement and walking, and that I was prescribed Voltaren Rapid”.[14]

[14]Plaintiff’s second affidavit, dated 11 March 2021, paragraph 3

36As to the progress with respect to his two injuries, the plaintiff swore:

“Since the date of my earlier affidavit, there has been little change in relation to my back injury.  My right hip injury has however continued to improve slightly over the past 15 months, and the pain in my hip has eased a little.”[15]

[15]Plaintiff’s second affidavit, dated 11 March 2021, paragraph 5

37With respect to his capacity for work, the plaintiff swore:

“I currently remain in receipt of a Newstart Allowance from Centrelink, although I have a job seeking exemption due to my injuries.  As a consequence of my ongoing back and right hip problems, I have not been able to return to my former job as a packaging and harvesting worker.  I do not believe I would be capable of the bending, lifting and other physical duties involved in that job.

Since arriving in Australia, I have only ever done farm work, and I have no other skills or work experience.  My English remains very modest, and I have poor computer skills.  Realistically, I cannot think of any other job I could perform at present on a consistent and reliable basis.”[16]

[16]Plaintiff’s second affidavit, dated 11 March 2021, paragraphs 7-8

38With respect to his ongoing disabilities, the plaintiff swore:

“I continue to be troubled by pain in my lower back and right hip on a daily basis.  The level and intensity of the pain in both regions continues to fluctuate depending on my level of activity.  At present, my lower back is giving me a few more problems than my hip, which has improved since I had a total joint replacement.  I experience a dull ache in my back, just above my buttocks, most days.  This pain tends to intensify if I sit or stand in the one position for prolonged periods, which can lead to the pain becoming a throbbing ache.

Activities that involve bending, heavy lifting or twisting provoke much sharper bursts of pain in my back.  My back also continues to feel quite stiff and tight and I have restricted movement.  From time to time, I also experience some cramping and muscle spasms in my lower back which are particularly annoying.

My right hip also continues to give me problems on and off.  Whilst the really sharp pain that I used to experience in my hip joint has improved since my surgery, I still experience a nagging, dull ache in my hip and into my right groin region.  This pain is more noticeable during cold weather and after activity.  When I am at rest, the pain in my hip is not too bad, and doesn’t bother me much.  However, any physical activity or prolonged periods of time on my feet causes my symptoms to flare up.  In particular, I find uneven ground to be awkward to navigate and my hip begins to ache and throb if I sit in the one position for too long.

In order to manage my pain levels, I continue to take Panadol on a daily basis.  Most days, I would take about four tablets throughout the day. I also use deep heat regularly on both my lower back and hip.  For more severe flare ups of pain, I take some prescription medication, although I try and do so sparingly.

I remain under the care of my general practitioner, Dr Kim Son Vu, in Springvale.  I see him on average every couple of weeks.  Over the past 12 months I found it difficult to access any hands on treatment for my back and hip injuries due to the COVID pandemic and lockdown and the fact that the insurer has refused to pay for my treatment.  As a result, I have focussed on performing exercises at home each day that my treating doctors have shown me.

My domestic and recreational activities remain restricted, largely as set out in my earlier affidavit.  I now live a fairly withdrawn and boring lifestyle. I spend much of time at home. From time to time I will accompany my wife to the shops or markets to help her with some shopping, but afterwards I often feel sore if I have had to do too much walking.  Most days, I will try and go for a short walk around my local area in order to help prevent my lower back and hip from becoming too stiff, but I find that if I overdo things and walk for too long, my hip and back both begin to throb and ache by the time I get home.

At home, I continue to be heavily reliant on my wife to perform most of the cooking and cleaning activities at home.  As a result of my back and hip problems, I have difficulty with cleaning activities such as vacuuming, sweeping, mopping and cleaning the bathroom.  Any tasks that involve bending, stooping or squatting causes me pain and so I try and avoid doing them as much as I can.

I am quite anxious and concerned about the future. In particular, I am worried about the likelihood of requiring further hip replacement surgery in the future.  I understand I am likely to require revision of my hip replacement in the next 10 or 15 years.

I am also worried about whether I will be able to get back to some form of work in the future.  I am worried about how I will be able to financially support my wife and I moving forward. I miss being able to work.  I miss being financially independent.  I miss being able to perform normal day to day activities without worrying about whether it will cause a flare up in pain of my back and hip.”[17]

[17]Plaintiff’s second affidavit, dated 11 March 2021, paragraphs 9-17

Causation: right hip, other evidence

39The defendant tendered in evidence a Claim Form of the plaintiff dated 5 January 2015 in which compensation was sought on account of his back, right hip, and leg, due to general aggravation caused by repetitive bending and lifting throughout his employment.[18]  However, within that report, Mr Cuong is listed as a witness to “the incident”, as was his supervisor, Mr Long.

[18]Exhibit 2

40Mr Cuong Hung Tran swore an affidavit on 12 March 2021.[19]  Mr Tran swore that he had been employed by the same employer for approximately twenty-one years, and that he was present on a day in July 2014 when the plaintiff was also working and suffered an injury in a fall.  He made a statement to an investigator from the WorkCover insurance company dated 16 January 2015, which was exhibited to the affidavit, and he attested that the facts contained therein were true and correct.

[19]Exhibit B, affidavit of Cuong Hung Tran, dated 12 March 2021

41In his statement, Mr Tran stated that he socialised with the plaintiff outside of the workplace, and “[w]e get together at each other’s places for dinner and catch up”.[20]  With respect to the incident, he stated as follows:

“About 12 months ago, I am unsure of the date, I was operating the Harvester and was off the machine at the time to check the pumping of the water and the machine.

I saw Dinh standing on the back of the flatbed area of the Tracker.  He was standing at the rear of the flatbed on the driver’s side.  This is the left hand side as the Tracker is left hand drive.

Dinh was loading the boxes from the Harvester onto the pallets which are on the flat bed of the Tracker.  This area contains 2 rows of 3 pallets (6 pallets in total).

Dinh was in the process of stacking the boxes of celery onto the left hand side rear pallet.  At the time he was stacking the top layer which is 10 boxes high, approximately 160 centimetres from the pallet.

As Dinh tried to place one of the boxes onto the top row, I saw him fall off the flatbed of the Tracker.  He fell from the flatbed to the ground.  I am unsure what caused Dinh to fall and I do not recall how he landed.

I went to assist him while he was laying on the ground and Dinh stood up on his own.  At the time he stood up Dinh was limping and said to me that he was in a lot of pain.”[21]

[20]Exhibit B, paragraph 7 of statement of Cuong Hung Tran dated 16 February 2015, exhibited to his affidavit of 12 March 2021

[21]Exhibit B, paragraphs 8-13 of statement of Cuong Hung Tran dated 16 February 2015, exhibited to his affidavit of 12 March 2021

42Thereafter, Mr Tran stated:

“At the time he ceased work in August 2014 Dinh advised me that he was in pain but did not say how he had hurt himself or what caused the pain.

When he ceased work, Dinh advised me that he had lower back pain, buttock and knee pain.  I am unsure if it is his left or right buttocks and knee that were causing him pain.

Since he ceased work I have seen Dinh approximately 3-4 times. He appears to be in pain and is limping.  If he sits for long periods he has trouble standing up and appears to be very stiff.”[22]

[22]Exhibit B, paragraphs 21-23 of statement of Cuong Hung Tran dated 16 February 2015, exhibited to his affidavit of 12 March 2021

43Having had this claim rejected, the plaintiff served another Claim Form dated 28 April 2017.[23]  On this occasion, the plaintiff claimed that he had suffered back, right hip, and leg injuries as a result of “a fall on or about 1 July 2014 and repetitive bending and lifting”.  He also stated that the date when the injury occurred was “1/7/14”.  When asked the name and position of the person he reported the injury to, he stated “Long (supervisor)”, and once again he nominated Mr “Cuong” as one of his witnesses.  This claim was also rejected, but on this occasion, there was not tendered in evidence the employer’s response to the claim, as there had been for the initial claim in January 2015.  Accordingly, I will not speculate as to whether Mr Long confirmed that the injury had been reported to him, but I am prepared to infer the absence of the employer’s report does not assist the employer’s defence in this regard, and I am more readily able to accept the evidence of the plaintiff and Mr Tran that in fact the fall did occur.

[23]Exhibit 3

44Having seen the plaintiff in the witness box and being cross-examined thoroughly, but fairly, I consider that he is basically a witness of truth, and I accept that the fall, as alleged, did in fact occur, and which in turn created pain in the right hip, such that to that point in time, the plaintiff has established that he suffered a traumatic injury to the hip, which created pain, which subsisted in the manner described in his affidavit above.

45I also accept that he suffered from the consequences outlined in his affidavit and as recorded in paragraphs 34 and 35 above, so that he has established a prima facie case that the consequences flowing from his back condition and his right hip condition, when viewed separately, are consequences which can be described as “more than significant or marked” and “at least as very considerable”.

The Plaintiff’s medical evidence

46In seeking to establish the ingredients of his claim, the plaintiff relies significantly on the medical reports of Mr Stephen Doig, orthopaedic surgeon, dated 16 March 2016, 3 April 2018 and 2 March 2021,[24] together with the two reports of Mr Russell Miller, orthopaedic surgeon, dated 12 September 2016 and 7 February 2017,[25] and the medical report of Dr Joseph Slesenger, specialist occupational physician, dated 9 March 2021.[26]

[24]Exhibit D

[25]Exhibit E

[26]Exhibit C

Mr Stephen Doig, orthopaedic surgeon

47In his first report, Mr Stephen Doig, orthopaedic surgeon, took a history from the plaintiff consistent with his affidavit material.  Mr Doig also noted that the history was at odds with that of orthopaedic surgeon, Mr Clive Jones, in his report dated 19 February 2015.  On examination, Mr Doig found as follows:

“Examination today of the left hip reveals a full range of movement. Examination of the right hip reveals that he is 1cm short.  There is 1cm of quadriceps wasting.  There is a 15cm long well healed posterior scar consistent with the insertion of the total hip replacement.  He has flexion to 110, extension to 10, abduction to 30, adduction to 20, ER to 50 and IR to 5. On the left side he has ER to 35 and IR to 20.  He has a decrease in the right knee jerk and his ankle jerks are normal.  He has normal power in the lower limbs. There is no calf wasting.  He has a negative Trendelenburg test.  He has a full range of movement of the lumbar spine.”[27]

[27]Plaintiff’s Court Book (“PCB”), page 52

48As to his assessment with respect to causation of the two injuries, Mr Doig stated as follows:

“This gentleman gives a history that he had a fall off an elevated platform or the back of a truck in July 2014 injuring his right hip.   He did not report the injury itself.  He continued to work for a period of time after that and then subsequently was investigated because of his ongoing right hip troubles.   The history that he gives is one that there was a specific incident in July 2014 and this history was taken via an interpreter.  It was checked with him.  He states that he fell directly onto the right hip and if in fact that is taken as being correct then that fall alone is enough to a have caused the problem as far as the right hip is concerned.  As far as his back is concerned it is clear that he had some ongoing problems for a significant period of time.  It is not clear from the local doctor’s notes as to whether that back trouble was what he presented for in 2009.  I note the report from Mr Jones also indicated that the hip problem started in July 2014 but he did not get the history of a specific injury at that time.  Since then he has had appropriate and correct treatment.  His medical condition has stabilized.  His current symptoms are as outlined above.  The treatment requirements at this stage are nil. The prognosis as far as the hip is concerned is excellent and from the clinical point of view he has done very well.  I do not anticipate that he will require further surgery in the foreseeable future as far as the hip is concerned.  It will eventually wear out but that maybe 10 to 15 years in the future and certainly not at this stage.  If the fall in fact did occur as the patient has described it then l would consider that his work has been a significant contributing factor to the development of the problem in the right hip.  I note that Mr Jones’ report did not feel that work was a related incident.  Certainly if there was no history of a fall then I would agree with Mr Jones assessment that the diagnosis is one of symptomatic avascular necrosis of the head of the femur and that it was not related to work.  However the presence of the fall and the ongoing symptoms since then would make me think that that is related to work.

As far as his back is concerned he has a full range of movement of the lumbar spine.  He does have evidence of spinal canal stenosis which of course is not work related.  It is difficult to know why he would have injured his back if in fact he feel directly onto the hip at the time.  He also gives a strong history of having had ongoing back problems well prior to this fall.  It is possible that work may have contributed to his ongoing low back pain because he does state that he had to do a lot of lifting and carrying.  I do not consider that he requires further treatment as far as his back is concerned at this stage.  I do not consider that he requires further assessment by another specialist.

In summary taking the history as being correct that the patient has given me and that there was a specific history of a fall in July 2014 I regard his hip as being work related.  His back maybe related to work but not definitely.”[28]

[28]PCB 52-53

49In his second report, dated 3 April 2018, Mr Doig related the plaintiff’s progress as follows:

“Since the last report he said that he has had no further surgery.  He still has some acupuncture and he says this is both for the low back and for the right hip.  As far as the hip is concerned he says that he still gets some minor pain in the groin, but this is particularly with activity rather than anything else.  He is able to walk for about 20 minutes without too many problems.  He is able to put on his shoes and socks. He does not use a cane and does not have a limp.  He can climb stairs and sit in any chair. He is able to use a tram and a bus. He is followed up annually at Monash Medical Centre and he said that the hip has improved a lot from he was before the operation.

As far as the low back is concerned he says that it feels somewhat better than when he was seen last time.  He says that he still has some acupuncture for his low back which he finds helpful.  He feels that it is continuing to slowly and steadily improve.  There is no other treatment that he is having for his back and there has been no other follow up as far as his back is concerned either.  He is currently on Panadol and cholesterol medications. He is not on any other medications at this stage.”[29]

[29]PCB 48

50On physical examination, Mr Doig found as follows:

“Examination today of the left hip reveals that he has a full range of movement.  Examination of the right hip reveals that he is <1cm short. There is the 15cm long well healed posterolateral scar consistent with the insertion of the total hip replacement.  He has flexion to 110, extension to 15, abduction to 30, adduction to 30, ER to 40 and IR to 10, and I note that his internal rotation on the left side is 30. He has a marked decrease in the right knee jerk.  The ankle jerks are normal.  He now has 1.5cm of right quadriceps wasting and 1cm of right calf wasting.  His power is completely normal. He is Trendelenburg negative.  He has a full range of movement of the lumbar spine.”[30]

[30]PCB 49

51As far as the plaintiff’s fitness for work is concerned, Mr Doig stated:

“He said that he felt he needed to rest his back a little more before returning to work.  He felt that he could do a picker and a packer job with restricted lifting.  He has not undergone any re-training and has not had any English classes to try and improve his English which is virtually non-existent.”[31]

[31]PCB 49

52Mr Doig considered:

“He is now capable of going back to suitable employment.  He will be significantly restricted as far as his employment is concerned because of his quite marked lack of English and I do note that the entire history was taken with the help of an interpreter.  Nonetheless from the purely orthopaedic point of view he is capable of returning to work on a reasonably light job which does not involve heavy lifting, pushing, pulling or carrying.  I can see no reason why he should not start to return to work as a picker now as long as he can have a job where he does not have to do a lot of heavy lifting.”[32]

[32]PCB 50

53In Mr Doig’s final report, dated 2 March 2021, examination of the right hip was effectively identical to the last occasion.  The diagnosis and causation was confirmed.

54Taking into account the right hip injury only, Mr Doig considered:

“... he is certainly capable of doing a picker and a packer job. The hip replacement itself is functioning well and is giving him minimal troubles.”[33]

[33]PCB 47

55He further stated, with respect to the lumbar spine:

“I consider that he will have difficulty in doing a heavy manual labouring job and it is likely that this is permanent.  He is certainly capable of doing a sedentary job, but his significant lack of English will prevent him from doing that.”[34]

[34]PCB 47

56Finally, he stated:

“For somebody who has had a joint replacement particularly at his age, it is unwise to do a heavy manual labouring job for the foreseeable future. This does not prevent him from working as a picker and a packer or an in a lighter position.”[35]

[35]PCB 47

Mr Russell Miller, orthopaedic surgeon

57Mr Russell Miller, orthopaedic surgeon, first reported on 12 September 2016.[36]  With respect to the right hip injury, he stated:

“The client has suffered an injury to the right hip. It is difficult to determine the exact nature of that injury, but I believe it is likely that he had prior disease (avascular necrosis) and he subsequently developed a fracture through that diseased area, leading to collapse of the femoral head and marked deterioration in his symptoms.

He subsequently underwent a right total hip replacement in approximately May 2015.  ... On the information currently available to me, the medium term prognosis for the right hip is good, but the long term prognosis is fair/poor, due to the risks of prosthetic loosening.”[37]

[36]Exhibit E

[37]PCB 60

58With respect to his back, Mr Miller stated:

“I believe this man had pre-existing disease in the lumbar spine and right hip. I believe the lumbar spine condition has been aggravated by the fall outlined above and by probable gait disturbance.”[38]

[38]PCB 60

59He did not comment about the general nature of the work.

60As to capacity for work, Mr Miller stated:

“This man will have difficulty with work that involves prolonged standing, prolonged walking, twisting, turning, kneeling, squatting, climbing and uneven ground.  He could not return to his pre-injury duties.

He is now really only suitable for sedentary type duties.  These restrictions are permanent and are significantly work related.”[39]

[39]PCB 61

61In his second report, dated 7 February 2017, Mr Miller essentially confirmed his previous findings and opinions.

Dr Joseph Slesenger, specialist occupational physician

62The plaintiff was then examined by specialist occupational physician, Dr Joseph Slesenger, on behalf of the plaintiff on 9 March 2021.[40]  Dr Slesenger took a history of work-related injury consistent with the plaintiff’s evidence.  As to his current symptoms, Dr Slesenger noted:

[40]Exhibit C

“Lower back

He has ongoing back pain that is moderate, occasionally severe between 5 and 7/10.  The pain is centred in the lower back, but does not radiate. The pain is dull in character and advised that the pain is aggravated by activity and cold weather, but can also deteriorate spontaneously up to 2 days a week.

Right groin

He has residual right groin pain with restricted range of movements in the right hip. The pain is mild to moderate at a level of 4 to 5/10.  The pain is worse when weight-bearing on the right side and climbing up and down stairs.  The pain can be aggravated by activity and cold weather, and prone to deteriorate spontaneously.”[41]

[41]PCB 37

63As to his current function, Dr Slesenger found:

“Mr Dinh can stand, sit and walk for up to 20 minutes.  He has difficulty climbing up and down stairs.  He generally leads with his left leg and he has difficulty weight-bearing on the right side and generally stands weight-bearing on the left side.”[42]

[42]PCB 37

64As far as return to work is concerned, Dr Slesenger noted:

“Mr Dinh advised that he remained at work until about a month after the fall. He has not returned to work since.  There is no return to work plan in place. He has not undergone retraining.  He has not been supported by a return to work coordinator.”[43]

[43]PCB 38

65Dr Slesenger considered that the plaintiff had suffered a right hip injury as a result of the fall as alleged, and that he had suffered aggravation of degenerative disease of the lumbar spine on account of the general nature of the employment.

66As to his current work capacity, taking into account his right hip injury only, Dr Slesenger stated:

“I am of the opinion that Mr Dinh cannot return to his pre-injury duties.

Based on his right hip impairment alone, I advise against him returning to his pre-injury role.  In addition, taking into consideration:

·His age (51).

·His residential location (Noble Park).

·His past employment history.

·The absence of support from a return to work coordinator.

·The absence of a return to work plan.

·His computer skills.

·His literacy skills.

·His lack of qualifications.

·His past employment history,

I am of the opinion that he is unlikely to be able to return to work in a role for which he has suitable training and experience on a consistent and reliable basis.”[44]

[44]PCB 43

67As to his current work capacity, taking into account the lumbar spine injury only, Dr Slesenger stated:

“Based on Mr Dinh’s lumbar spinal impairment alone, I am of the opinion that he is unlikely to be able to return to his pre-injury role as the job demands lie outside his capacity limits and taking into consideration the following factors:

·His age (51).

·His residential location (Noble Park).

·His past employment history.

·The absence of support from a return to work coordinator.

·The absence of a return to work plan.

·His computer skills.

·His literacy skills.

·His lack of qualifications.

·His past employment history.

I am of the opinion that he is unlikely to be able to return to work, performing suitable alternative duties on a consistent and reliable basis.”[45]

[45]PCB 44

The Defendant’s medical evidence

Mr Clive Jones, orthopaedic surgeon

68The defendant had the plaintiff examined by orthopaedic surgeon, Mr Clive Jones, who reported on 19 February 2015.[46]  It was clear that there was some difficulty in obtaining a succinct history because of the following paragraph:

“A Vietnamese interpreter was present at the consultation, but even so, it was difficult to understand completely what Mr. Dinh’s work tasks actually were.”[47]

[46]Exhibit 5

[47]Exhibit 5, report of Mr Clive Jones, dated 19 February 2015, DCB 17

69Further, Mr Jones took a history:

“… His job seems to be collecting these items [bins or baskets], stacking them on pallets, and driving the pallets to the shed for packing into the groups of six or so, where they are unloaded for processing … .”[48]

[48]Exhibit 5, report of Mr Clive Jones, dated 19 February 2015, DCB 17

70Then the history proceeds as follows:

“The problem is a painful right hip.  There was no history or injury.  The onset of symptoms was spontaneous and occurred in July 2014.  He simply put up with his symptoms and took a holiday to Vietnam in September 2014, which lasted for about six weeks or so … .”[49]

[49]Exhibit 5, report of Mr Clive Jones, dated 19 February 2015, DCB 17

71Although the painful right hip was spontaneous and occurred in July 2014, Mr Jones does not give a history of exactly what the plaintiff was doing when the symptoms occurred spontaneously.

72On this occasion, Mr Jones noted:

“… The current medication is Panadeine or Panadol.  He does not have any back pain.  Symptoms frequently disturb sleep … .”[50]

[50]Exhibit 5, report of Mr Clive Jones, dated 19 February 2015, DCB 17

73On examination, Mr Jones found:

“He is a short, slim man, walking with a marked right hip limp, with the aid of a crutch.   There is soreness in the right groin and quite marked irritability of the right hip.  Abduction in flexion in particular is substantially reduced, when the two sides are compared.  All leg lengths are equal.  There is mild wasting of the right quadriceps muscle.  Back function is normal and the legs are also neurologically normal.”[51]

[51]Exhibit 5, report of Mr Clive Jones, dated 19 February 2015, DCB 17

74With respect to investigations, Mr Jones recorded:

“Plain x-rays of the lumbar spine indicate degenerative change at the L3-4 disc of the lumbar spine.  An x-ray of the pelvis is highly suggestive of an avascular necrosis of the right femoral head.  There is slight loss of joint space, and some deformity.  The MRI, reported on 16/12/14, notes degenerative labral tearing, and a sufficiency fracture of the right femoral head, with an avascular necrosis and marrow oedema.”[52] 

[52]Exhibit 5, report of Mr Clive Jones, dated 19 February 2015, DCB 17

75Mr Jones’ opinion was that the plaintiff had a painful right hip with “avascular cause” in the right femoral head.  He was on the waiting list for a hip arthroplasty and in the meantime he remained crutch dependent, with a painful and irritable right hip joint.[53]

[53]Exhibit 5, report of Mr Clive Jones, dated 19 February 2015, DCB 18

76The diagnosis was one of “symptomatic avascular necrosis of the right femoral head”[54] and the condition was constitutional and “in no way related to the [plaintiff’s] employment with Schreurs & Sons Pty Ltd”.[55]

[54]Exhibit 5, report of Mr Clive Jones, dated 19 February 2015, DCB 18

[55]Exhibit 5, report of Mr Clive Jones, dated 19 February 2015, DCB 18

77Further, Mr Jones opined:

“Currently, with a painful and irritable hip, he is unable to work in any capacity.  Presumably, following successful hip surgery, a return to employment of some kind should be achievable.”[56]

[56]Exhibit 5, report of Mr Clive Jones, dated 19 February 2015, DCB 18

78I note that this report is largely consistent with the plaintiff’s medical evidence, save for the cause of the hip injury being related to a fall at work.

Dr Mary Wyatt, occupational physician

79Thereafter, the defendant had the plaintiff examined by occupational physician, Dr Mary Wyatt, who reported on 12 December 2015.[57]  At this time, Dr Wyatt recorded the surgery for the right hip and the fact that the plaintiff had lodged a claim for income protection and total and permanent disability.

[57]Exhibit 6

80On this occasion, Dr Wyatt took a history that the plaintiff spent about half of his working week driving a tractor and half lifting boxes of celery, which weighed around 13 to 15 kilograms.  He also gave a history of back problems, and also right hip pain.  The plaintiff also gave a history that he fell at work in mid-July 2014, and his symptoms became worse at that stage.[58]

[58]Exhibit 6, report of Dr Mary Wyatt, dated 12 December 2015, DCB 20

81Dr Wyatt noted that the plaintiff was still recuperating from surgery, but was hopeful of resuming work.  She noted he was still employed by the employer, who apparently told him they would assist him working on less-demanding duties.  The plaintiff also noted he would be able to drive a tractor, but would not be able to return to the repeated manual demands of the job of repeated lifting of boxes of celery.  He thought there might be light duties in the shed, such as his wife undertakes.[59] 

[59]Exhibit 6, report of Dr Mary Wyatt, dated 12 December 2015, DCB 21

82The plaintiff’s current status was one of soreness in the right side of the lower back and right buttock area, with soreness when bending and doing heavy lifting.  He said that his sleep was satisfactory and that domestically he was doing the cooking and cleaning and was overall managing.  He was taking no medications.  The plaintiff also confirmed that he had longstanding back pain.[60]

[60]Exhibit 6, report of Dr Mary Wyatt, dated 12 December 2015, DCB 21

83On examination, Dr Wyatt noted the plaintiff:

“… attended as a pleasant straightforward man.  He had a bright smile, which he maintained for much of the consultation.  He was seen with the aid of a professional Vietnamese interpreter, and most of the interview was conducted through the interpreter.  He was uncomplicated in his presentation and co-operative with the examination … .”[61]

[61]Exhibit 6, report of Dr Mary Wyatt, dated 12 December 2015, DCB 22

84Further, examination of the back revealed a normal range of motion, other than some limitations of extension, while examination of the right hip revealed tenderness over the lateral aspect of the right hip, with no tenderness noted anteriorly.  There was mild tenderness in the right buttock, but no tenderness over the lumbar spine.[62]

[62]Exhibit 6, report of Dr Mary Wyatt, dated 12 December 2015, DCB 22

85After reviewing relevant radiological examinations regarding both injuries, Dr Wyatt noted:

“He has a long history of back complaints, according to the treating doctor’s clinical notes.   … [The plaintiff] said his back pain was generally manageable, although there have been multiple consultations with varying doctors about lower back complaints.

… [The plaintiff] developed increased pain and related this to a fall at work in 2014. The records in relation to that initially refer to right sciatic pain and it was initially considered that his symptoms related to his back.  he attended the Emergency Department and subsequently had further investigations and was diagnosed with avascular necrosis of the hip.  He went on to have a right hip replacement in May 2015, and has progressed well since then.”[63]

[63]Exhibit 6, report of Dr Mary Wyatt, dated 12 December 2015, DCB 23

86Dr Wyatt considered the plaintiff had recovered well from his hip replacement surgery and he personally was happy with the outcome of the operation.  He did complain of some continued soreness at his right hip, more with activity, and he was continuing to attend the Dandenong Hospital Outpatient Department regarding the replacement surgery.  Otherwise there was no continued treatment for his hip.[64]

[64]Exhibit 6, report of Dr Mary Wyatt, dated 12 December 2015, DCB 23

87Despite the history of the fall and the subsequent diagnosis with respect to the hip problem, Dr Wyatt still considered that his hip problem was constitutionally based.[65]

[65]Exhibit 6, report of Dr Mary Wyatt, dated 12 December 2015, DCB 24

88Further, Dr Wyatt opined:

“… [The plaintiff] is physically capable of resuming modified duties.  With his hip replacement and relatively young age, it is not sensible he returns to significant manual handling.  He is therefore permanently unfit for his job component that requires him to repeatedly bend and lift 12ꟷ13kg boxes of celery.

He is fit to drive a tractor, and is fit to do light duties in the shed, as he said is likely to be discussed with his employer.  A graduated return to work would assist, but is not absolutely necessary.

With respect to his hip problem, avoidance of repeated heavy manual handling, such as lifting over 8kg repeatedly is sensible.  It is also sensible he is not working in a job where he needs to repeatedly kneel or squat.

…

The hip restrictions are required permanently … .”[66]

[66]Exhibit 6, report of Dr Mary Wyatt, dated 12 December 2015, DCB 24

89Finally, Dr Wyatt stated:

“Mr Dinh has done generally well.  He is fit to resume work on restricted duties but not pre-injury duties, as discussed above.”[67]

[67]Exhibit 6, report of Dr Mary Wyatt, dated 12 December 2015, DCB 25

Mr Ian Dickinson, orthopaedic surgeon

90Finally, the defendant had the plaintiff examined by orthopaedic surgeon, Mr Ian Dickinson, who reported on 1 April 2020.[68]  Mr Dickinson took a history that the plaintiff had a fall on 1 July 2014, when:

“… [h]e pulled on one of the boxes and fell on his back, hurting himself.  He said he thought this was the cause of his pain.  He said that after this, he continued to go to work but he still experienced back pain which became more and more sore.”[69]

[68]Exhibit 7

[69]Exhibit 7, report of Dr Ian Dickinson, dated 1 April 2020 , DCB 29

91Thereafter, the plaintiff underwent massage, physiotherapy, performed exercises and took analgesics.  His pain became worse and he had an MRI scan and x-ray of his hip, and had twelve months off work before having a hip replacement in May 2015.[70]

[70]Exhibit 7, report of Dr Ian Dickinson, dated 1 April 2020 , DCB 30

92The current situation was recorded as pain in the lower back on the right-hand side and also in the right upper buttock: 

“… He describes pain if walking for more than 15 minutes.  He said it also becomes more painful when it is cold.  He tosses and turns at night.  Sometimes, when he walks he feels pain in the leg although this is variable.  He also sometimes has pins-and-needles around his right heel.”[71]

[71]Exhibit 7, report of Dr Ian Dickinson, dated 1 April 2020 , DCB 30

93In summary, Mr Dickinson stated:

“… [The plaintiff] described a fall onto his back at work.  He described not having back pain before the injury but described having had a hip fracture.”[72]

[72]Exhibit 7, report of Dr Ian Dickinson, dated 1 April 2020 , DCB 33

94With respect to the aetiology of the right-hip condition, Mr Dickinson confirms the diagnosis of avascular necrosis that states:

“I note that the radiology report of the MRI records a fracture.  This is not a fracture related to trauma but is part of the pathological process of avascular necrosis, where the avascular segment separates from the rest of the femoral head.”[73]

[73]Exhibit 7, report of Dr Ian Dickinson, dated 1 April 2020 , DCB 33

95It was Mr Dickinson’s opinion that:

“The symptoms that he has and the physical restrictions that he has would not limit any normal physical activities.”[74]

[74]Exhibit 7, report of Dr Ian Dickinson, dated 1 April 2020 , DCB 34

96As to the degenerative change in his lumbar spine, Mr Dickinson thought that this was constitutional and would gradually progress.  He considered that:

“… There is no correlation between the degree of degenerative change and lumbar symptoms.”[75]

[75]Exhibit 7, report of Dr Ian Dickinson, dated 1 April 2020 , DCB 34

97Although Mr Dickinson considered that the plaintiff may need surgery to revise his right hip and also may need surgery for his spine in the future for degenerative spinal stenosis, none of the progress of his physical condition is related to any aspect of his work or injury. 

98Although Mr Dickinson considers that the hip replacement was consistent with the “end stage of a vascular necrosis”, he does not adequately explain the onset of pain in the right hip following the fall and whether the fall may have exacerbated, in some way, the underlying constitutional condition.

99Further, Mr Dickinson considered that despite the fall on 1 July 2014 and the alleged back injury, the plaintiff could, nonetheless, return to pre-injury duties.[76]

[76]Exhibit 7, report of Dr Ian Dickinson, dated 1 April 2020 , DCB 37

Analysis

100I accept the plaintiff’s medical evidence that the fall in July 2014 aggravated the underlying vascular necrosis, such that the pain and suffering, thereby occasioned, accelerated the need for the hip surgery with the attendant disabilities.

101Although I accept that the plaintiff had probably pre-existing degenerative change in his spine prior to commencing the second period of employment, the fact he was able to work in the three-year period, without time off, persuades me that the nature of that employment significantly contributed to the pre-existing degenerative condition in the lumbar spine, such that by the end of 2014, a comparison in impairments, as set out in the Court of Appeal decision of Petkovski v Galletti,[77] is such that he was able to perform the strenuous heavy work, despite the pre-existing degenerative condition, but by the time he had finished in employment, his lumbar condition was significantly compromised in his ability to work.

[77][1994] 1 VR 436

102Further, I accept the opinion of Mr Miller with respect to the consequences relating to the hip and back, as set out in paragraphs 57 and 58 above.  I also accept the opinion of Mr Doig as to the consequences of the separate injuries, as set out in paragraphs 55 and 56 above.

103Further, I accept the opinion of Mr Slesenger that the general nature of the work would have significantly contributed to the underlying degenerative condition, as set out in paragraph 65 above.  I also accept his analysis with respect to the separate injuries set out at paragraphs 66 and 67 above. 

Loss of earning capacity

104It is clear enough that there is medical evidence to the effect that the plaintiff is physically able to do sedentary or light tasks relating to basic manual work. Leading Counsel for the plaintiff submits that the plaintiff is not able to carry out “suitable employment” as defined in s3 of the Act, principally having regard to:

(a)   the nature of the plaintiff’s incapacity with respect to the right hip alone; alternatively, the lumbar spine alone, in accordance with the opinion of Dr Slesenger above;

(b)   the nature of the plaintiff’s pre-injury employment; and

(c)   the plaintiff’s age, education, skills and work experience.

105It is clear enough that, based on the plaintiff’s work-style activities, he would have a physical capacity to undertake light duties if such a job were available to him and would take into account the need for him to have appropriate rest periods, and perhaps remain for up to two days a week in bed, as taken in the history by Dr Slesenger.  However, as Ashley and Kaye JJA stated in Richter v Driscoll:[78]

“[R]eturn to work in employment ... requires more than that a physical capacity to engage in a task or tasks.”

[78][2016] VSCA 142 at paragraph [76]

106The employment must be as specified in the definitions of “no current work capacity” and  “suitable employment”.  For their Honours, the definition of “suitable employment”:

“... plainly shows that physical capacity to perform a particular task does not mean that an employment requiring that task thereby becomes suitable employment. If it were otherwise” –

and their Honours warned –

“paragraphs (a)(ii), (iii) and (iv) would have no work to do.”[79]

[79]Richter v Driscoll (ibid) at paragraph [76]

107Accordingly, the question whether a worker is able to return to work in suitable employment, according to their Honours:

“... specifically requires consideration of matters travelling beyond physical capacity to perform a task.”[80]

[80]Richter v Driscoll (ibid) at paragraph [77]

108Accordingly, the construction which Ashley and Kaye JJA placed on the definitions of “no current work capacity” and “suitable employment” can be expressed as follows:

“[W]hether a worker has ‘no current work capacity’ requires consideration of the worker’s ability to work in employment having regard to the entirety of the worker’s personal circumstances—these including the injury-caused incapacity and as well other circumstances personal to the worker bearing upon his or her ability not simply to perform physical tasks required by a particular employment, but to work in that employment as a settled member of the workforce.[81]

(Emphasis added)

[81]Richter v Driscoll (ibid) at paragraph [95]

109They further stated:

“The other, closely allied, way in which the matter may be put is shown in the passage of the judgment of Fletcher Moulton LJ in [Cardiff Corporation v Hall [1911] 1 KB 1009], where his Lordship referred to a worker’s incapacity being such as to destroy or impair his or her ‘powers of labour [as] a merchantable article’.”[82]

[82]Richter v Driscoll (ibid) at paragraph [96]

110Osborn JA agreed with Ashley and Kaye JJA in this regard.  His Honour stated:

“The concept of return to work in employment necessarily engages the question of the worker’s employability having regard to both his or her personal characteristics and the present and continuing effects of the injury. Unless this concept is given its full dimension, the object of providing just and adequate compensation to workers will be defeated. ...

A worker may have no ability to return to work if the combination of his or her personal characteristics (eg age, lack of qualifications, and lack of employment experience) together with his or her physical limitations render him or her in reality unable to obtain employment.

This is not to equate ‘able to return to work’ with ‘able to obtain work’ or ‘able to find work’ as the respondent submits, but simply to acknowledge that ability to return to work in employment must be addressed holistically.”[83]

(Emphasis added.)

[83]Richter v Driscoll (ibid) at paragraph [143]-[145]

Analysis

111In my view, the largely uncontested restrictions set out in the plaintiff’s affidavits inform, to a large extent, his capacity to return to work “as a settled member of the workforce”.  In this regard, I adopt and accept the evidence of Dr Slesenger as occupational physician, and prefer it to that of the defendant’s occupational physician, Dr Wyatt, for the reasons referred to above.

112In all the circumstances, I am satisfied that the plaintiff does not retain “powers of labour [as] a merchantable article”.[84]

[84]Richter v Driscoll (ibid) at paragraph [96]

113Accordingly, leave will be granted to the plaintiff to issue proceedings for economic loss damages with respect to right hip injury and a lumbar spine injury arising out of his employment.

114Further, in accordance with the principles set out in Advanced Wire & Cable Pty Ltd v Abdulle,[85] leave will also be granted to issue proceedings for pain and suffering damages with respect to both injuries.

[85][2009] VSCA 170

115I will hear the parties as to any further orders.

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