Duffin v Corowa Trading Company Pty Ltd and VWA -and-; Duffin v Blue Scope Steel Limited

[2010] VCC 785

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION LIST

SERIOUS INJURY DIVISION

Case No. CI-07-02825

LEE DUFFIN	Plaintiff
v
COROWA TRADING COMPANY PTY LTD	First Defendant
-AND -

Case No. CI-09-02782

LEE DUFFIN	Plaintiff
v
BLUE SCOPE STEEL LIMITED	Second Defendant

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JUDGE:	HER HONOUR JUDGE K L BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:	24, 25, 26 May 2010
DATE OF JUDGMENT:	10 June 2010
CASE MAY BE CITED AS:	Duffin v Corowa Trading Company Pty Ltd & VWA -and- Duffin v Blue Scope Steel Limited
MEDIUM NEUTRAL CITATION:	[2010] VCC 0785

REASONS FOR JUDGMENT

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Catchwords: ACCIDENT COMPENSATION – Serious injury application – injury to the lumbar spine – aggravation – pain and suffering conceded by first defendant – loss of earning capacity claim against both defendants.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Kennan SC and	Clark Toop & Taylor
Mr M Ruddle
For the First Defendant	Ms M Britbart	Herbert Geer
For the Second Defendant	Mr P Elliott QC and	Spark Helmore
Mr J Walker
HER HONOUR:

1 By Originating Motion No. CI-07-02825, the plaintiff brings an application for leave to bring proceedings for damages pursuant to Section 134AB (16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by him in the course of his employment with the first defendant on 11 April 2002 (“the first incident”).

2          The plaintiff seeks leave to bring proceedings for damages in relation to loss of earning capacity only, pain and suffering having been conceded at the commencement of the hearing.

3 By Originating Motion No. CI-09-02782, the plaintiff brings an application for leave to bring proceedings for damages pursuant to Section 134AB(16)(b) of the Act for injury suffered by him in the course of his employment with the second defendant on 12 May 2007 (“the second incident”).

4          The plaintiff seeks leave to bring proceedings for damages in relation to both pain and suffering and loss of earning capacity in that application.

5 The relevant principles governing applications pursuant to Section 134AB of the Act are as follows:

(i)	Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages;
(ii)	The impairment of the body function must be permanent;
(iii)	The plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, subsections (19) and (38)(e) impose specific burdens in relation to a claim for loss of earning capacity;
(iv)	By subsection (38)(c) of the Act, the impairment must have consequences in relation to each of pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being “at least very considerable” and “more than significant” or “marked”;
(v)	I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders;
(vi)	Where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of forty per cent or more, both at the date of hearing and permanently thereafter;
(vii)	Subsections (38)(e) and (f) recite the formula by which loss of earning capacity is to be measured;
(viii)	Subsection (38)(g) requires questions of rehabilitation and retraining be considered in determining whether the forty per cent loss has been established;
(ix)	Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases;
(x)	I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 and Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602 in reaching my conclusions.

6 The plaintiff brings these applications pursuant to clause (a) of the definition of “serious injury” to be found in Section 134AB(37) of the Act. There, “serious injury” is defined relevantly as meaning “permanent serious impairment or loss of a body function”.

7          The impairment of body function relied upon in both applications is the lumbar spine.

8          The plaintiff relied upon three affidavits and gave viva voce evidence. He was cross-examined. Mr Kavar, the plaintiff’s treating neurosurgeon, was required to attend for cross-examination. In addition, the parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.

The Plaintiff’s Evidence

9          The plaintiff swore his first affidavit on 23 March 2007 before the second incident.

10        The plaintiff is presently aged thirty nine, having been born on 24 August 1970. He completed Year 9 and left school during Year 10. Thereafter, he commenced factory work. He then started an apprenticeship as a roof tiler and slater and remained in that trade for about five to six years.

11        The plaintiff was unemployed in the recession in the late 1980s and early 1990s for a number of years and he then moved to Queensland and worked as a casual tree lopper. For about two years he worked in gardening and maintenance in Queensland. After that time, he was concurrently self- employed as a roof tiler and gardener.

12        The plaintiff then managed to secure some casual factory work and then moved onto full time work and obtained a truck licence and worked as a driver for about a year or so.

13        The plaintiff returned to Melbourne and did some casual work driving for a recycling business for a couple of months, and then worked as a driver for a window company for a year.

14        In or about 1997 or 1998, the plaintiff commenced work with the first defendant, also known as Francis Transport. This job as a truck driver involved delivering general freight to various locations throughout Melbourne, and occasionally the country. The plaintiff normally worked about thirty eight hours a week.

15        The plaintiff married in October 2000 and he has two young daughters. He has recently separated from his wife and presently lives with his father.

16        The plaintiff initially deposed that over the years he had suffered from minor back complaints. He had sought chiropractic treatment but had generally been able to manage with the work he was doing. He had about a week off work after an incident when he injured his back on 26 March 2001. At that time he saw a general practitioner, Dr Hussein.

17        In December 1999 and March 2001, the plaintiff injured his back while working for the first defendant. He had some time off work and sought treatment but returned to full time unrestricted employment and made a good recovery.

18        In cross examination, the plaintiff confirmed that from time to time before 2002, he had back pain at different times, mainly due to non work related activities, in relation to which he attended his doctor and possibly took medication.

19        At work on 11 April 2002 (“the first date”), the plaintiff was required to lift tubular steel gates on the sides of the truck above head height. By reason of their bulk the gates were particularly awkward to lift and whilst lifting them, the plaintiff immediately felt severe lower back pain (“the first incident”).

20        Prior to the first date, the plaintiff had requested the first defendant use lighter aluminium gates but the first defendant did not go ahead with that proposal as the quotes for such gates were too expensive.

21        The plaintiff finished work on the first date but during that day his lower back pain worsened and he reported the injury at the depot. He attempted to return to work and was he placed on light duties. However, after several days his pain became unbearable and he stopped work.

22        After the first incident the plaintiff was unable to see his usual doctor. He consulted a physiotherapist, and on 12 April 2002, he saw Dr Russo, complaining of pain, particularly in the right part of his lower back and into the right aspect of his lower legs.

23        Dr Russo treated the plaintiff with laser acupuncture and strong anti- inflammatory medication and pain relievers but the plaintiff failed to improve and he continued to have ongoing sharp radicular pain into his right leg.

24        The plaintiff also felt a weakness in his right ankle and the muscles of his right lower leg and numbness from his knee round to the back of his calf, down to and including his ankle and foot on the right and he also suffered foot drop.

25        On 19 April 2002, the plaintiff had an x-ray and a CT scan of his lumbar spine. He underwent physiotherapy treatment from Mr Dibb. As his back and leg pain was severe and not improved, on about 7 May 2002, Dr Russo referred the plaintiff to Mr Kavar, neurosurgeon.

26        The plaintiff underwent an MRI scan on 8 June 2002. He was then advised by Mr Kavar that surgery was essential due to the extent of the disc prolapse and the ongoing weakness and numbness and continuing pain that Mr Kavar felt was due to compression of the nerves.

27        Mr Turner, orthopaedic surgeon, examined the plaintiff for a second opinion on 19 August 2002.

28        On 2 September 2002, the plaintiff was admitted to the Melbourne Private Hospital where Mr Kavar performed a right-sided L5-S1 hemi-laminectomy discectomy and a neurolysis (“the first operation”) the following day. The plaintiff was an inpatient for six days and was then discharged and underwent physiotherapy from Mr Depolo.

29        After the first operation, the plaintiff felt an improvement in his leg pain as he “had new feelings”, but he continued to have ongoing back discomfort, including a shooting pain down his right leg. The numbness was still present from the right side of his knee rounding down the side of his calf all the way to the right side of his foot going across the top to his big toe. At times the pain could be so bad the plaintiff found himself limping for weeks and even months on end.

30        The plaintiff returned to work in about February 2003, starting on four hours a day, three days a week on light duties, building up to full time alternative duties but not full time driving. Possibly he did one or two small deliveries in a smaller truck. His work was predominantly in the warehouse and he was required to drive a forklift and to attend to general paperwork.

31        During Easter 2003, the plaintiff suffered from muscle spasms in his low back but took no time off work as he was on holiday. There was no specific trigger for the spasms. In July 2003, the plaintiff again had a spasm in his back. He had no time off work. He thought that spasm was triggered when he bent over to pick up something.

32        In cross examination, the plaintiff said that he may have had a couple of days off work due to these spasms. Otherwise, in the year or so after the first incident, he was able to perform full time light duties without needing to take time off. Whilst on light duties he was not doing very much, just standing around a great deal.

33        In about November 2003, the plaintiff was referred to Sunbury Physiotherapy Clinic and he was also referred to a podiatrist.

34        In December 2003, the plaintiff’s employment was terminated as he was advised he carried too much of a risk as he had now also suffered with rolling of his foot, requiring him to be off work for a week

35        Whilst working for the first defendant, the plaintiff worked thirty eight hours a week, earning about $14.80 an hour or $562.00 gross per week, together with superannuation.

36        At the time of the first incident, the plaintiff was concurrently employed by Adecco, a labour hire company, who consigned him to work at TNT for four hours a night, five days a week driving a forklift and carrying out scanning. The plaintiff was paid $18.00 an hour or $260 net per week, excluding superannuation, in that job.

37        Immediately after the first incident, the plaintiff became depressed, resulting in marital and financial problems, and after about five months of stress he was referred to a psychologist, initially twice a week over about four to five months. Termination of his employment made the plaintiff even more stressed and worried.

38        On or about 14 January 2004, the plaintiff commenced employment with Logical Freight Solutions as a driver and courier, delivering lightweight bio tech parcels to hospitals and universities in a small dual cab vehicle. This work was much lighter and easier to handle than the job with the first defendant.

39        In cross examination, the plaintiff agreed he was suffering from back pain on occasion between January 2004 and May 2005. He was not totally pain-free while doing courier work, and sometimes he had to see Dr Russo, and possibly he had some physiotherapy, and he was being prescribed painkillers.

40        When working as a courier driver, the plaintiff’s symptoms changed from day to day, from leg pain to back pain, shooting pain, and numbness in his foot, which was there all the time. He took Tramal and Voltaren as required.

41        The plaintiff earned a base salary of approximately $32,000 a year, in addition to overtime, and he later received a pay rise to $34,000.

42        In cross examination, the plaintiff said that this job was difficult but manageable. In about May 2005, the plaintiff had an exacerbation of his lower back pain while getting out of bed. There was no other incident. He saw Dr Russo and remained off work for about three months. Save for flare-ups, the plaintiff did not require time off this job because of his back condition.

43        In July 2005, the plaintiff was reviewed by Mr Kavar. The plaintiff subsequently returned ready for light duties as advised, but he was told at the workplace they had no light duties and that he could only return when cleared to carry out normal work.

44        Upon providing a clearance from his doctor and neurosurgeon that he could return to full time courier work, the plaintiff was told after about a week that he was no longer required for that role and he was advised that someone else had been employed to do his job. The plaintiff was placed in the warehouse as a storeman packing boxes which did not involve any heavy lifting, however he was required to stand in one position for prolonged periods, engage in repetitive bending and he also was required to go into a freezer where the temperature was minus twenty. This work caused difficulties with the plaintiff’s back and leg pain.

45        Between 7 and 12 November 2005, the plaintiff worked for Schenker as a cartage co-ordinator on an annual salary of $45,000. The plaintiff took this position thinking he would be working in the warehouse but it in fact the job involved office work with computers “so it was a little bit foreign to him”. He tried the best he could but lasted for just a week as he was “just in over his head”.

46        At that time, a job with the second defendant was pending when the plaintiff started work with Schenker. The plaintiff at that time was “weighing up his options” but he needed to “try and get income to support his family”.

47        The plaintiff commenced work with the second defendant on 21 November 2005 as a customer service representative. He did not tell the second defendant that he had a back problem.

48        The job required the plaintiff to liaise with customers and ensure their orders were met and that correct products were delivered in a timely and correct manner.

49        Initially the plaintiff was paid a base salary of $40,000 a year plus an annual varying bonus in addition to superannuation. His salary increased to $42,000 per year plus an annual bonus in addition to superannuation

50        In March 2007, the plaintiff deposed that this role had become more sales orientated. Even though he also now had a notable limp, he tried not to allow it to impair him too much but he had days when he felt varying degrees of pain as he was required to sometimes sit for prolonged periods. The plaintiff deposed he held reservations as to whether he could maintain his employment given his injury as it seemed to be deteriorating.

51        The plaintiff deposed in his first affidavit that since the first incident he had continued to have lower back pain in his right buttock going into his right hamstring with shooting pains into his right leg. He also had pain in his right calf and pins and needles associated with variable numbness and weakness in his right foot and leg, and pain in that area.

52        He had great difficulty doing domestic chores, such as vacuuming, and had difficulty driving for extended periods and also difficulty gardening.

53        The plaintiff used to enjoy motorbike riding, fishing, camping, roller blading and golf but he was severely restricted in his enjoyment of those activities by reason of the first incident injury and he had lost social contact with friends and no longer water skied or played golf.

54        The plaintiff was cross-examined about an entry in Dr Russo’s notes of 29 January 2007. The plaintiff did not have a clear recollection of the circumstances described, but it was possible as he had flare-ups whilst working for the second defendant. He did not go to the hospital on that occasion. The plaintiff agreed that two days later he would have been prescribed Tramal and Voltaren, and that he was being prescribed both tablets on a regular basis for his back.

55        The plaintiff disagreed that he was getting worse at that time, except when he had flare-ups, which, depending on their length, could vary from a couple of days to a week or so.

56        It was a possibility that he was given a medical certificate and had a day off after 29 January 2007, and he agreed that on occasions, although he was trying, he had to take some time off “here and there” from work, but he could not honestly remember.

57        As of March 2007, the plaintiff had constant numbness in his right ankle. He injured his right ankle when he tripped at work in November 2003.

58        The plaintiff deposed his back injury had placed a great deal of strain on his marriage, other family members having to take him to medical appointments because his wife was working full time.

59        After the first operation, the plaintiff was still unable to do simple maintenance jobs around the house and also he required home care assistance for general cleaning and gardening.

60        The plaintiff deposed in March 2007, that he occasionally needed help putting on his shoes and socks. The pain in his lower back and right leg was there most days but it varied in intensity from time to time. He could sit okay but he had difficulty getting comfortable. He could stand for various periods but he got pain if standing for prolonged times or holding something for too long. His sex life was a little bit awkward because of the limitation caused by his low back pain and the shooting pain down his leg.

61        At that stage, the plaintiff was particularly worried about re-injuring his lower back because sometimes the simplest things could cause a flare-up. He was then taking Tramal, on average three to four times a day, and also Mobic, but he was no longer taking Celebrex.

62        In cross examination by counsel for the first defendant, the plaintiff agreed that his back pain had never really gone away since 2002. From time to time it caused him to limp; he had numbness in his right foot - all problems he experienced in varying degrees. However, he was able to work full time with the second defendant up until 2007 and he did not take significant time off work in that job because of his back condition.

Attendances with Mr Kavar

63        The plaintiff was cross-examined at length about attendances with Mr Kavar leading up to the time of the second incident.

64        The plaintiff confirmed he saw Mr Kavar following a flare-up in September 2006. The plaintiff told Mr Kavar he was having tingling in his leg and foot and tried to deal with it. The plaintiff was not sure if he used the words “there were times when the back and leg pain was very well controlled”, but he supposed it was manageable.

65        The plaintiff agreed that there were times, though, when he had pain that was very severe and he could not stand on his right leg. At that time, the plaintiff was working full-time with the second defendant and not taking time off.

66        The plaintiff confirmed that his symptoms had changed since the first operation. He confirmed that he told Mr Kavar in September 2006 that he had difficulty “starting things off” with his right leg. The foot drop had come and gone since the first operation, and was “pretty much there all the time”.

67        The plaintiff agreed that in September 2006 there would be flare-ups, and he could not cope, and it would be so bad he could not stand on his right leg and do things of that nature when the flare-ups occurred.

68        The plaintiff next saw Mr Kavar in December 2006. The plaintiff could recall telling him that his pain had improved significantly since the September 2006 flare-up. The symptoms had changed, and he did not agree that the weakness in his ankle had got better. The plaintiff still had mild ankle dorsiflexion weakness, but he was not sure if that was better than in September, but he supposed his understanding would have been that his symptoms had changed. He explained that he meant he got a lot of “sort of different type of pain”, and sometimes it was shooting pain, and sometimes consistent pain, and he thought the fluctuation of pain had changed. He said at times it felt like it might have been better, but with “sort of different types of pain” in terms of severity and areas. The plaintiff could recall Mr Kavar telling him there was a small protrusion, and he discussed surgery as an option.

69        The plaintiff agreed that in view of the fact that he had improved significantly, he elected to defer surgical intervention at that time. The plaintiff agreed he had got a lot better, and he preferred to “wait and see”, and he was also scared of having another operation.

70        The plaintiff agreed with counsel for the first defendant that he did not want to have surgery in December 2006 because his back symptoms were not too bad, and he was managing them, and he wanted to see if that level of manageability would continue.

71        From December 2006 until the second incident there had not been any flare- ups, and the plaintiff had put off consideration of surgery. During that time the plaintiff agreed his pain had been manageable and he continued to work full- time.

72        The plaintiff confirmed that he deposed in both affidavits to having a notable limp before the second incident and also that he had reservations about whether he could retain his employment with second defendant prior to the second incident, as his injuries seemed to be deteriorating.

73        The plaintiff agreed he was being prescribed Tramal and Voltaren between 2006 up until the second date.

74        The plaintiff swore a second affidavit on 4 February 2009 in which he repeated the contents of his first affidavit and then went on to describe the second incident.

75        The plaintiff started work with the second defendant on 21 November 2005. He continued working into the following year with difficulty and had some days off. He was still taking medication and having physiotherapy although he could work full time.

76        The plaintiff agreed with the contents of Dr Russo’s notes. The plaintiff thought that an entry mentioning back spasm and camping on a date prior to 14 June 2007 related to a flare-up the plaintiff had when he went to Mildura in Easter 2007.

77        On or about 12 May 2007 (“the second date”), the plaintiff was involved in a stocktake at the second defendant’s premises. Whilst walking around the factory warehouse he tripped over a piece of wood that was sticking out from underneath fencing posts. He lurched forward and jerked his back quite severely and nearly fell (“the second incident”).

78        As a result of the second incident, the plaintiff suffered severe pain but he continued working and hoped the pain would go away. He also suffered right groin pain for a couple of months.

79        The plaintiff rested the next day. The following day the plaintiff came into work but had to stop due to pain and he was sent by the second defendant to its doctor who suggested the plaintiff see his local general practitioner and specialist.

80        From the time of the second incident, the plaintiff also suffered right groin pain for a couple of months.

81        The plaintiff was able to see Mr Kavar, who assessed him and continued to prescribe medication for him. The plaintiff was placed off work and further investigations were organised and he was advised to have an operation.

82        The plaintiff was admitted to The Royal Melbourne Hospital where Mr Kavar performed a discectomy and laminectomy in August 2007 (“the second operation”) after which the plaintiff was hospitalised for six days. After discharge, the plaintiff underwent physiotherapy two or three times a week, later reduced to two times a week, and he undertook Pilates, hydrotherapy, and took medication.

83        The plaintiff’s claim for weekly payments in relation to the second incident was accepted. The plaintiff tried to return to work with the second defendant in November 2007 on a part time light duties basis, initially four hours one day, then four hours on two days, then four hours on three days.

84        The most the plaintiff worked was three days full time and half a day. He tried to do another half a day but the pain progressively worsened and he was having spasms and his body started to twist and bend.

85        Having tried these additional hours, the plaintiff went home for the weekend and rested but when he got up on the Monday, whilst in the shower, he sneezed and collapsed due to pain. The plaintiff could not see his usual doctor so he saw Dr Glasenbury and further medication and rest was prescribed.

86        The plaintiff then saw Dr Russo and a further MRI scan was organised and the plaintiff again saw Mr Kavar. The plaintiff was off work at that time for about two months.

87        The plaintiff then returned to work on Mondays, working four hours. When he saw the second defendant’s doctor he was sent to a specialist and after a while he was advised by the second defendant that there was no position for him. The plaintiff has not worked since March 2008. His employment was terminated on 12 January 2009.

88        On his return to work with the second defendant following the second operation, the plaintiff did counter-sales work on a cash register, typing-in orders and phone calls. The plaintiff described a gradual increase in his hours, but he could not cope with that increase. It might have only been for a week that he did three days plus two half days. When he hit three days, he actually went to his general practitioner and told him he was getting quite sore. Because of his work ethic, he “just tried to sort of soldier on”.

89        The plaintiff agreed that the work with which he was having problems at that time was very light.

90        He explained that he could only work two or three hours a day because he was not coping with the hours he was working at the end with the second defendant, and he “sort of felt [his] condition probably had deteriorated” to a certain extent, and that two or three hours would be his limit.

91        The plaintiff described the sneezing incident in March 2008 and how he tried to go back to restricted duties after that, but, after there were some discussions about different types of duties, he was not contacted any further by the second defendant. Since that time he looked at advertisements for part-time work to see “what is out there”. He looked at some sort of counter work, but has not applied for any jobs. He is not having physical treatment, as payment for such was terminated, and financially he cannot afford it.

92        The plaintiff confirmed a return to work plan dated March 2008 which involved avoiding lifting of 5 kilograms, avoiding forceful pushing or pulling activities, movements of his back beyond one-third of the normal range, and avoiding prolonged static postures, such as sitting or standing in the same position for more than 45 minutes at a time.

93        The plaintiff agreed the return to work program was done in conjunction with his doctors. It was dated 25 March 2008, and it was put to him in the affidavit of Mr Inserra that “the plaintiff, on his return to work, was unable to work thirty four hours but he was coping well up to thirty four hours a week but in April had the sneezing”.

94        The plaintiff disagreed that he was managing, because prior to the sneezing he had gone to see his general practitioner and his symptoms were increasing, “aggravation spasms and things like that,” at a time when he had done three days and two half-days in one week. He was not managing with those hours.

95        The plaintiff looks at job advertisements now but he has not found a great deal of anything that has been suited to what he thinks he is capable of doing. Possibly he is capable of two to three hours a day, maybe, on a part-time basis a couple of days a week, doing light work.

96        The plaintiff disagreed that because of these problems he had not been really looking for jobs. He said it was mainly because physically he did not feel capable of working to an extended period beyond two to three hours. He had tried certain things just around the house, and he knew he experienced pain in such circumstances.

97        The plaintiff takes Panadeine Forte occasionally, depending on how he is; sometimes five to ten a week. He has got some old prescriptions from Dr Russo. He also takes Panamax. He has some old pristhene prescriptions, and he takes the occasional anti-inflammatory and sometimes Panadol and Ducene from time to time.

98        The plaintiff was asked about the vocational assessment done by Healthe Work. If there was a biotech job, possibly he could do it, with manual handling of small size items. The plaintiff agreed he had said to the interviewer that pursuing a return to work was not his focus, and it was getting himself right as well as getting his family back, but then said his limitations of what he could do were part of it.

99        The plaintiff agreed that the light courier work he did after he left the first defendant was something he could try again, but then agreed that looking for work at the moment is not a focus.

100       The plaintiff had also said to the vocational assessor that he had a fear of further mistreatment similar to that he had received at the hands of the second defendant, and that was possibly a reason why he had not attempted to return to work.

101       The plaintiff thought possibly he could work as an internal-sales clerk or counter-sales clerk. It all depended on what the job involved.

102       The plaintiff explained he had done a basic computer course, and had always done some basic computer work with Blue Scope, entering “codes and stuff” into their system. He thought possibly he could do a course and get some more computer skills. In re-examination, the plaintiff confirmed his computer skills were basic, and he could not deal with the Schenker work.

103       The plaintiff is on a Disability Support Pension, however in the future he might be able to do some light part time work, say two hours by three days a week, but he would have great difficulties.

104       The plaintiff has continuous pain in his back which can be severe and intensifies if he tries to do anything. Further, he has pain going down into his right leg and numbness in his right foot. He has difficulty walking, bending, sitting and standing for any period of time.

105       Due to his injuries, the plaintiff separated from his wife in February 2009. He became anxious, irritable, frustrated and depressed due to his back pain and that did not help his married life.

106       The plaintiff was referred by Dr Russo to Ms Emma Campbell, psychologist, whom he last saw in April 2009. Since that time he has seen a counsellor at the local community centre about eight to ten times. The plaintiff is still depressed and anxious and his memory and concentration have been affected by his injuries.

107       The plaintiff last saw Dr Russo in December 2009. He has not seen him since that time because of his family issues and the fact that he suffered some sort of breakdown physically and emotionally. He still takes old prescriptions and uses medication prescribed for family members.

108       The plaintiff saw Raelene Bartram, psychiatrist, in November 2002. She noted at that time the plaintiff had problems with word recognition, encoding and retrieval, and also frustration around difficulties with expression and communication. He had a problem with reading that was always there, and his spelling is only basic.

109       The plaintiff had seen Professor Teddy at the pain clinic on two occasions, and he discussed with him exercise, Pilates, and other techniques. He stopped doing Pilates because the funding was cancelled.

Activities

110       The plaintiff used to have a good social and sporting life. He used to play golf but does not do that now, nor does he engage in water skiing which he previously liked. He has great difficulty riding a motorbike.

111       When cross-examined by counsel for the second defendant, the plaintiff agreed the restrictions set out in the first affidavit relating to the first incident were quite profound in terms of the plaintiff’s sporting activities and life.

112       The plaintiff has great difficulty going to the pictures as he cannot sit for any lengthy period of time due to his back injury. He cannot walk for long distances or go camping. He has difficulty going up stairs or going over uneven ground.

113       The plaintiff’s father does most of the things around the house and the plaintiff tries to help doing bits and pieces. The plaintiff still tries to do things at his ex- partner’s place but it is very difficult. The plaintiff uses an exercise ball at home. On occasion he goes swimming. He still sees his children, but does not participate in activities like working bees. He still goes to the football, but not regularly, and takes painkillers.

Details of the Plaintiff’s Earnings

Financial Year Ending Taxable Income

30 June 1999	$20,059.00
30 June 2000	$31,254.00
30 June 2001	$31,966.00
30 June 2002	$42,755.00
30 June 2003	$26,538.00

Financial Year Ending Taxable Income

30 June 2004	$44,140.00
30 June 2005	$39,539.00
30 June 2006	$37,759.00
30 June 2007	$44,966.00
30 June 2008	$41,688.00

The Plaintiff’s Medical Evidence

114       As the nature of the plaintiff’s back condition is not really in issue and there is no suggestion of any non-organic features or exaggeration in his presentation on examination, I do not propose to deal in detail with examination findings save for those of Mr Kavar, who has examined the plaintiff throughout in relation to the first and second incident injuries.

115       Dr Russo of the Gladstone Park Medical Clinic has been the plaintiff’s general practitioner for many years.

116       Dr Russo reported that the plaintiff suffered minor back ailments in September 1999 and December 1999. Those incidents only lasted a very short time, and improved quite well with rest, medication and exercise therapy.

117       The plaintiff presented to Dr Russo on 12 April 2002 complaining of pain in the right part of his lower back and into the right aspect of his lower leg after the first incident. The plaintiff was initially treated conservatively with mobilisation traction, acupuncture, and other medications, but failed to improve. Investigations were then ordered, and the plaintiff was referred to Mr Kavar.

118       Dr Russo reported that following the first operation, the plaintiff recovered well, with marked improvement in his leg pain and some ongoing minimal back discomfort. He still had some ongoing numbness on the lateral aspect of the right leg, with some mild weakness and occasional pain in the posterior part of his back and leg, especially in the upper area. The hallucis weakness and numbness continued.

119       The plaintiff underwent intensive rehabilitation, worksite assessment and work placement. He also underwent some psychological counselling, and continued to attend the gym. The plaintiff commenced a new job in about June 2002 as a light courier driver with lifting restrictions beyond five to ten kilograms.

120       In June 2005, Dr Russo reported that it had been encouraging that the plaintiff had shown a degree of recovery. However, he noted that about eight weeks earlier the plaintiff had a major exacerbation of his low-back pain with some referred pain down his right leg. The plaintiff had had to start physiotherapy and take pain relief and an anti-inflammatory. A further CT scan which was ordered had significant findings. The plaintiff was again referred to Mr Kavar who at that stage advised continuing conservative treatment.

121       Dr Russo noted that the plaintiff had continued to improve from that recent exacerbation which had been caused by the normal passage of time and the plaintiff’s activity as a courier driver. At that stage Dr Russo thought the plaintiff should be able to return to modified duties as a courier driver and slowly increase his duties. He suggested a worksite assessment be carried out.

122       Dr Russo considered that exacerbation was not a new injury, but a continuation and exacerbation and a likely probable consequence directly due to the first incident, after which the plaintiff was likely to have exacerbations of pain and incapacity on an ongoing basis.

123       When he reported in August 2006, Dr Russo noted the plaintiff continued with his courier driving work. The plaintiff continued to suffer sciatica and low-back pain on the right side, and was generally well other than for intermittent attacks of low-back pain and leg pain. Further, the plaintiff continued to regularly suffer from pain towards the toes and foot associated with numbness and reduced straight-leg raising. He continued to suffer facet-related joint pain from the level in the spine at L5-S1. The plaintiff was then having occasional use of Celebrex, Panadeine Forte, pool exercises and gym.

124       The last examination in relation to which Dr Russo reported was 4 May 2006. He noted at that stage exacerbations would be common and they were a continuation and direct result of the first incident.

125       The plaintiff was referred by Dr Russo to Mr Dibb, physiotherapist, on 29 April 2002. He did not see the plaintiff after the first operation.

126       The plaintiff was originally referred to Mr Kavar by Dr Russo in May 2002. At that time, Mr Kavar noted the plaintiff had had multiple episodes of low-back pain. However, since April 2002 he had had significant back pain associated with right-sided leg pain which started on waking one morning and progressively worsened. The pain radiated from the buttock down the right leg towards just above the calf. More recently he had associated pins and needles and numbness involving his entire left foot.

127       On examination, the plaintiff presented with antalgic gait, although he had a good range of back movement. He certainly had decreased sensation in the distribution of the L5 nerve roots, and there was a weakness of the right extensor hallucis longus function and absent ankle jerk.

128       At that stage, Mr Kavar thought the plaintiff clinically seemed to have features of both an L5 and S1 radiculopathy, and he noted the CT scan was certainly very suggestive of an L5-S1 disc prolapse. He then arranged for an MRI Scan which showed the plaintiff had a massive right-sided L5-S1 disc prolapse that extended behind the vertebral body of the L5 up to the L4-5 disc space, which, in Mr Kavar’s view, was undoubtedly compressing both the L5 and S1 nerve roots.

129       At that stage, considering the size of the prolapse, Mr Kavar recommended surgical intervention in order to avoid any possible neurological deficit to the plaintiff’s bowel and bladder function.

130       The plaintiff was admitted to the Melbourne Private Hospital on 2 September 2002, and the following day Mr Kavar performed a right-sided L5-S1 hemi- laminectomy, discectomy and neurolysis (“the first operation”).

131       On post-surgical review on 21 October 2002, Mr Kavar noted that the plaintiff was continuing to improve. He had marked improvement of his leg pain, and complained of minimal back pain. He still had numbness over the anterolateral aspect of the right leg with the extensor hallucis weakness.

132       At that stage, Mr Kavar thought it was important for the plaintiff to avoid any heavy lifting, repetitive bending, and twisting type activity, and he strongly recommended avoidance of manual work involving those tasks. He also had significant concerns about the plaintiff working as a forklift driver, sitting in that posture for a prolonged period.

133       The plaintiff next saw Mr Kavar on 31 May 2005. The plaintiff then presented with significant low-back pain associated with right buttock pain on waking. This pain radiated down the back of his thigh, and occasionally into his toes. There had been no change in the plaintiff’s numbness, and he had not developed any weakness.

134       Mr Kavar noted the plaintiff’s pain had improved significantly with analgesia, anti-inflammatories, and magnet therapy.

135       The CT scan of the lumbar spine taken on 6 May 2005 revealed a right L5-S1 foraminal stenosis with distortion of the right S1 nerve root in the lateral recess. Clinically, Mr Kavar felt the plaintiff had features reminiscent of his S1 radiculopathy, which Mr Kavar thought could certainly be accounted for by the facetal hypertrophy and lateral recess stenosis. Mr Kavar recommended management with foraminal steroids and potentially a facetal block. Liability for these procedures was not accepted by the insurer.

136       At that stage, Mr Kavar thought the plaintiff’s problems were the continuation of his original injury from the first incident where he had a disc prolapse at L5- S1 on the right. He thought that would undoubtedly result in changes to that facet joint, and must be responsible for the plaintiff’s present clinical problem. Mr Kavar anticipated the plaintiff was likely to be subjected to periods of pain and incapacity as a result of the original injury.

137       In cross examination, Mr Kavar denied that he was contemplating surgery in 2005 when he suggested facet procedures. These would be an investigation as a precursor to MRI where, if appropriate findings were made, then surgery would be considered.

138       Counsel for the second defendant tendered a report to the second defendant’s Workers Compensation officer dated 8 August 2007 (“the second defendant’s report”).

139       Following examination on 31 May 2005, Mr Kavar noted in that report that the plaintiff reported over the previous almost three years he remained extremely well. On that examination, the plaintiff found he developed recurrent low-back pain associated with right-sided leg pain when waking. There was no change in the mild numbness of his foot, and no new weakness.

140       When Mr Kavar next saw the plaintiff on 5 September 2006, the plaintiff reported the occurrence of flare-ups. There were occasions where he had very good control of his pain. However, what he found troublesome were times when the pain was so severe he could not stand on his right leg. The plaintiff advised he noted times of increased tingling in his leg and foot, and he had ongoing numbness in his right leg and foot with associated pain, and he could not push off with his right leg. The plaintiff told Mr Kavar his pain pattern had changed, and he had associated low-back pain and also a degree of weakness in his right foot.

141       Examination revealed a mild right-foot drop with mild weakness of ankle dorsiflexion, plantar flexion and eversion.

142       At that time, Mr Kavar had concerns of progressive compression of the S1 nerve root and potentially L5 nerve root, but also potentially common peroneal nerve palsy, and he arranged for further investigations.

143       This examination was referred to in the second defendant’s report, where Mr Kavar noted that since previous interview, the plaintiff had had a variable course. At times he was doing extremely well. However, he did have recurrences of right-sided leg pain, and more recently had noted a sense of weakness in his right foot.

144       Mr Kavar wrote to Dr Russo on 5 September 2006, having reviewed the plaintiff. He noted that the plaintiff had had a fluctuant course since last seen, and had variable back, buttock, or leg pain, the main problem being pain down his right leg. The plaintiff had had a sharp shooting pain a few months ago which was followed by a sense of weakness in his right foot, and since then had had mild weakness with variable pain and numbness. The plaintiff had noted he could not quite push off with his right foot as well as he could previously.

145       In the second defendant’s report Mr Kavar noted that on review on 12 December 2006, the plaintiff said his pain had improved significantly. He still had mild ankle dorsiflexion weakness. However, even that appeared to be better than when last seen.

146       Mr Kavar noted the results of the 12 October 2006 MRI scan and nerve- conduction studies taken on 9 September 2006 which he thought were more in keeping with denervation in the L5 nerve root distribution rather than a common peroneal palsy.

147       Mr Kavar discussed the various options with the plaintiff, and felt that a ‘re-do’ discectomy on the right at L5-S1 may well help with the plaintiff’s leg pain. Mr Kavar noted, in view of the fact the plaintiff had improved significantly, the plaintiff understandably elected to defer any surgical intervention.

148       On 12 December 2006, Mr Kavar wrote to Dr Russo, having reviewed the plaintiff on that day. In view of the improvement of his leg pain, he noted the plaintiff decided to defer surgical intervention.

149       He noted that the plaintiff found his right leg pain and ankle weakness had improved slightly since the last examination. Having mentioned the main indication for surgery was to improve the plaintiff’s quality of life and improve his foot weakness, Mr Kavar mentioned that he had discussed the risks of surgery with the plaintiff, and noted, importantly, that such surgery did not prevent a recurrent disc prolapse, although it certainly decreased the plaintiff’s chances.

150       Mr Kavar concluded he would leave it up to the plaintiff to decide on which direction he wished to the proceed, and, should he find that pain continued to be a problem, Mr Kavar was “more than happy” to consider the surgical option, leaving it up to the plaintiff to get in touch with him if he wanted to proceed.

151       The plaintiff had an exacerbation of his pain following a jarring episode at work, and saw Mr Kavar again on 15 May 2007. That episode had precipitated severe right-sided leg pain radiating down the plaintiff’s leg from his buttock and was progressively getting worse. The plaintiff also complained of calf pain and right groin plus testicular pain. He noted some tingling in his toes in his left foot.

152       On examination, there was an absent right ankle jerk. However, power appeared normal.

153       Mr Kavar organised further imaging and subsequent review.

154       By letter dated 15 May 2007, Mr Kavar wrote to Dr Russo detailing this examination. Mr Kavar had little doubt the plaintiff had exacerbated his previous problem at L5-S1 and probably exacerbated his recurrent disc prolapse. He noted the plaintiff was likely to be more symptomatic because of his first operation, scarring associated with it, and the fact that he was known to have a conjoined L5 nerve root. Mr Kavar advised he was going to arrange for a repeat MRI scan of the lumbar spine and would review the plaintiff thereafter.

155       The second defendant’s report referred to an examination on 14 June 2007.

156       Mr Kavar noted that there had been some improvement of the plaintiff’s pain once again. He still had numbness and mild weakness in his right foot. The recent MRI confirmed a recurrent right-sided L5-S1 disc prolapse which was certainly worse when compared to the imaging six months earlier. Mr Kavar felt that the plaintiff would benefit from ‘re do surgery’ and discussed this with the plaintiff, who subsequently contacted his rooms on 9 July 2007, indicating he wished to go ahead as pain was not settling.

157       On review on 7 August 2007, the plaintiff reported some improvement of his pain, and it was manageable, but certainly he had significant ongoing discomfort. He wanted to discuss surgery again with Mr Kavar prior to embarking upon it, and they went through the pros and cons.

158       On 14 August 2007, Mr Kavar performed a ‘re-do’ right-sided L5-S1 hemi- laminectomy, discectomy and neurolysis (“the second operation”) and the plaintiff was discharged from hospital a few days later.

159       On review on 4 October 2007, Mr Kavar noted that the plaintiff was certainly not doing as well as either of them would have liked, and his recovery was not as good as following the first operation. Even though the pain had improved, the plaintiff had ongoing lingering buttock and variable leg pain, and also persistent numbness and had mild right ankle dorsiflexion weakness. A regular exercise program was suggested.

160       On review on 19 February 2008, the plaintiff had manageable but variable pain down his leg. There were times when it was quite strange, with a sharp shooting component. It was not as persistent and as severe as preoperatively, but it certainly had not resolved.

161       On examination on 22 July 2008, Mr Kavar noted that, unfortunately, the plaintiff was not doing well. He had had another turn where, following a sneezing episode, he had a significant exacerbation of his back and leg pain. The plaintiff was then regularly taking Voltaren and Tramadol.

162       Examination revealed an ongoing antalgic gait with decreased sensation in the right L5-S1 nerve root. A repeat MRI scan showed no obvious recurrent disc prolapse with mild scar tissue on the right of L5-S1.

163       Mr Kavar, at that stage, did not believe there was any surgical procedure that he could provide that would dramatically change the plaintiff’s pain phenomenon, and thought the plaintiff should at least see a pain-management physician and arranged for him to be reviewed by Professor Teddy and Dr Malcolm Hogg.

164       Mr Kavar thought employment with the first defendant was the cause of the plaintiff’s low-back condition in view of fact that the plaintiff had worked in the transport industry for quite some time as a delivery driver involving multiple episodes of repeated bending, twisting, and heavy lifting, which was what resulted in his initial disc injury and prolapse. He did not believe the employment with the second defendant was a cause of the plaintiff’s current condition. He thought that injury exacerbated or aggravated an underlying problem, and noted the plaintiff had presented to him with recurrent leg pain prior to 2007.

165       Mr Kavar considered the employment with the first defendant had resulted in a disc injury. Over time the plaintiff would have accelerated wear and tear and degenerative changes at that level, and potentially he may develop a repeat disc prolapse or instability.

166       Finally, Mr Kavar apportioned the contribution expressed as a percentage to ninety per cent to the first defendant and ten per cent to the second defendant. He did not believe the plaintiff was able to return to his pre-injury duties with the first defendant, and that the limitations of his education were going to limit the plaintiff’s long-term skill development prospects. He initially thought the plaintiff might be able to return to a graded return to work program with light duties, but he was not optimistic, given his condition on the last review.

167       In Mr Kavar’s view, the plaintiff was likely to have his current back condition irrespective of any contribution from the second defendant, in view of the fact he already had symptoms before working there.

168       Mr Kavar last saw the plaintiff on 27 April 2010, at which time the plaintiff continued to complain of low-back pain which was dull and constant, flaring up with minimal activity. The plaintiff also had associated right-sided leg pain going towards the dorsum of his foot with some involvement of his calf. At various stages he had an electric like sensation in his back or legs.

169       The plaintiff continued to have associated mild numbness in his foot, with weakness in his ankle, and with sitting he noticed mild tingling in his left foot. The plaintiff was then on minimal analgesia and felt he was able to cope with his pain. He had been exercising and swimming.

170       Mr Kavar noted, unfortunately, as a result of the plaintiff’s ongoing leg and back pain and difficulties with work, he had separated in February 2009 and was attempting reconciliation. The plaintiff felt anxious and depressed and was receiving counselling, and recently had started to develop recurrent headaches.

171       Mr Kavar noted the plaintiff appeared to be “upfront” about his clinical condition on examination. He walked with an antalgic gait, and had limited back movements, particularly extension. He had ongoing mild altered sensation in the distribution of the right L5 and S1 nerve root, and an absent right ankle jerk. He still had a mild right plantar flexion weakness.

172       In Mr Kavar’s view, the plaintiff had remained very much the same since last seen in 2008, with ongoing discomfort, altered sensation, and mild numbness. Mr Kavar suggested to the plaintiff that if he wished to, he was more than happy to reinvestigate him to determine if anything further could be done from a surgical perspective.

173       Having been provided with the plaintiff’s affidavit, Mr Kavar still felt the plaintiff’s employment with the first defendant was the significant contributor to his low-back injury and subsequent prolapse, but Mr Kavar noted, following the first operation, the plaintiff had improved for a short time. He did, however, re-present to him with a degree of back and leg pain which was manageable until he sustained another injury while working for the second defendant.

174       Mr Kavar noted, although that employment with the second defendant was not the primary factor responsible for the plaintiff’s clinical problem, Mr Kavar believed it was a contributor to his clinical problem. In his view, considering the fact that the plaintiff did have symptomatology prior to that injury, even though the injury with the second defendant was a contributor, he did not feel it was the major contributor to the plaintiff’s spinal pathology.

175       Considering the plaintiff’s clinical problem had not effectively resolved to the extent that he has been able to remain employed for a prolonged period of time, Mr Kavar felt that the plaintiff was unlikely to return to full-time unrestricted manual type occupation.

176       In evidence in chief, Mr Kavar stated that he currently does not believe the plaintiff is capable of any manual labour-intensive work, and potentially he could return to light duties with retraining. He would dissuade the plaintiff from any activity in a prolonged static posture. He thought the plaintiff could manage anywhere between two to four hours a day before the discomfort became too much of a problem.

177       He thought it was likely that the plaintiff’s condition would remain stable for hopefully a prolonged period but the natural degenerative changes predict that over time he was going to get worse.

178       In cross-examination by counsel for the first defendant, Mr Kavar confirmed the plaintiff had marked improvement of leg pain and he had minimal back discomfort when seen on 21 October 2002 after the first surgery. It was his view, at that stage, that the plaintiff would be able to get back to some sort of work.

179       Mr Kavar confirmed that when he next saw the plaintiff in May 2005, the plaintiff had said he had been coping extremely well for the previous three years. It was appropriate for him to be doing the work he was doing at that time because even though he had pain, he felt it was manageable. Mr Kavar considered the May 2005 incident was just a flare-up, and no appointment was made thereafter.

180       Mr Kavar confirmed that on the next examination in September 2006, the plaintiff reported he had had a variable course since the previous time he had been seen, and at times he was doing extremely well but he did have recurrences of right leg pain, and he had a mild right foot drop.

181       Having received the MRI around that time, Mr Kavar advised the plaintiff that, if the plaintiff felt the leg pain was significant, a repeat discectomy certainly would help his leg pain, and potentially also help to recover the foot weakness.

182       Mr Kavar agreed that whether the plaintiff needed surgery or not was really dependent on the plaintiff’s subjective experience of symptoms, and he noted the plaintiff was certainly reluctant to consider surgery at that stage. The plaintiff’s pain had always had a fluctuant course. There were times when the plaintiff improved, and he decided to defer the surgical option.

183       Until that time, Mr Kavar agreed that the plaintiff had occasional exacerbations of pain which then subsided within a relatively short period of time, as they were after the first operation.

184       The fact that the plaintiff had not come back to see him after the end of 2006 potentially meant the plaintiff did not feel he required further treatment or that he was apprehensive about surgery.

185       The plaintiff in fact next came to see him after the second incident. It was Mr Kavar’s impression at that time that the plaintiff had a significant increase in his pain, there was also an exacerbation of the existing altered sensation in his right leg, and more significantly new right-sided groin pain.

186       In Mr Kavar’s view, that finding reflected that there was a change in the dynamics of the spine, that a new injury was created, and there was more muscle spasm. He considered the right groin was probably a reflection of some of the more anterior muscles of the spine going into spasm, causing radiation to the groin, which the plaintiff had never had before.

187       Mr Kavar agreed some physiological change had taken place, and the second incident had exacerbated the recurrent disc prolapse at L5-S1. Mr Kavar thought the plaintiff was more likely to become more symptomatic because of the previous operation and the scarring.

188       Mr Kavar explained that the findings on the second MRI appeared to be worse than the imaging prior to the jarring incident. The bulge at L5-S1 was worse.

189       The plaintiff attended Mr Kavar’s surgery on 9 July 2007 advising he wanted to go ahead with the surgery.

190       On examination in February 2008, the plaintiff had improved but he was not better than before the second incident and has never been.

Work
191	Mr Kavar thought the plaintiff had the potential to continue employment. If he was able to manage his pain, he could then return to some form of lighter duties.
192	Mr Kavar agreed that if not for the first incident, the plaintiff would not have been as sensitive to the tripping incident in 2007.
193	Mr Kavar agreed that the plaintiff was able to cope for about five years with work on basically a full-time basis with just a couple of periods off, with some exacerbations, but he had never got back to the level he was at before the second incident. Mr Kavar agreed, when the plaintiff worked with the second defendant, his spine was more susceptible than normal.
194	Mr Kavar considered the plaintiff would not probably be at his current level of disability were it not for the tripping incident.
195	Mr Kavar agreed that as of the April 2010 examination, the plaintiff was on a minimal amount of analgesia and felt he was able to cope with his pain.
196	Mr Kavar confirmed the plaintiff may be able to return to light duties with his current back condition. Really it was something that the plaintiff would have to try and see how it went. Mr Kavar thought there certainly would be room for an increased use of analgesia to help the plaintiff cope with symptoms. When it was put to him that the plaintiff could cope with two hours, then increasing work with some analgesic intake, Mr Kavar said “Potentially, but it had its limitations and concerns of the long-term”.
197	In cross-examination by counsel for the second defendant, Mr Kavar said that he probably would have advised the plaintiff not to return to work as a truck driver after the first incident, and to look for something lighter. Mr Kavar agreed that the plaintiff would have had the restrictions on his sporting life and the general level of disability to which he deposed in his affidavits prior to the first incident.
198	The foot drop was not found at the initial post-operative examination, and it appeared to have developed after 2002.
199	Mr Kavar agreed the history he had been given by the plaintiff was of a series of flare-ups that could come on for no real traumatic reason. Mr Kavar agreed with the paragraphs of the plaintiff’s affidavit sworn prior to the second incident detailing his problems at that time were representative of the plaintiff’s complaints to him.
200	Mr Kavar confirmed that prior to the second incident, the plaintiff’s injury was deteriorating, leading to the further MRI of his lumbar spine in October 2006, after which he advised the plaintiff to do a ‘re-do’ operation.
201	Mr Kavar said there was not a huge amount of difference between the two MRIs, but there was certainly a suggestion that the disc prolapse was great at L5-S1, where it had always been, and there was involvement of the right S1 nerve root as always. The aim of further surgery was to take away that type of leg pain.
202	Mr Kavar was later taken through the late 2006 and March 2007 MRI scans. Mr Kavar agreed on the reports, that they appeared to be very similar findings, but he thought, having viewed the films, the disc prolapse looked much worse on the repeat MRI scan. He agreed the reports said the nerve root was no longer being impinged upon.
203	Mr Kavar thought at some stage, irrespective of the second incident, the plaintiff would have come to the operation he proposed.
204	Had the plaintiff come to him after the January 2007 flare-up, Mr Kavar probably would have told the plaintiff perhaps it was time for the ‘re-do’ surgery. Mr Kavar again agreed potentially at some time, irrespective of the second incident, the plaintiff would have come to operation.
205	In re-examination, Mr Kavar stated that there is no doubt a group of patients, despite having a significant disc prolapse, can have improvement if a disc resolves without surgery. Had the plaintiff not had the second incident, he could have gone from anything from six months to a few years until further surgery.
206	Mr Kavar suggested a jarring incident such as the stumble in the second incident could be of a varying nature, so it was hard to equate it with simply rolling in bed or a sneezing incident.
207	Mr Kavar does not think further surgery is necessary at the moment, and it is going to depend on how the plaintiff’s pain phenomenon progresses. In Mr Kavar’s view, clinically the plaintiff’s leg pain certainly was better than prior to the operation, though not to the same extent as he thought the plaintiff would like.
208	Mr Kavar would encourage the plaintiff to try and get back to some lighter type of work, as he considered the plaintiff had some work capacity. He thought the plaintiff may be able to get back to work, but his return would have to be monitored and managed through a rehabilitation physician or an occupational therapist. In his view, potentially the plaintiff could try to do courier work.
209	The plaintiff would not be completely reliable in terms of his foot function, working as a driver, particularly with the weakness in lifting his foot up. Even if the weakness was mild, it was one which Mr Kavar considered could potentially be a hazard in a stress situation.
210	When he last saw the plaintiff, Mr Kavar did not think the plaintiff was able to work full-time. Mr Kavar thought the plaintiff may be able to do light work with the second defendant on limited hours, but he did not think the plaintiff would be able to manage with full-time courier work.
211	Mr Kavar thought the employment with the second defendant was not a major contributor to the plaintiff’s spinal pathology, nor that it was a significant contributing factor, as compared to the employment with the first defendant.
212	When asked about the contribution of both jobs to the plaintiff’s current position, Mr Kavar concluded that the work with the second defendant was undoubtedly a contributor to his problem. Between seeing him and that episode, the plaintiff was having ongoing discomfort, but it appeared manageable. The pain phenomenon did appear to change after the second incident, in terms of discomfort down the leg, and groin discomfort. Despite surgery, the plaintiff has not been able to quite return to an improved level of functioning as he did after the first operation.
213	Comparing the problems after the first and second surgery, Mr Kavar advised that even though there was some improvement of pain following the second surgery, it was not to the same degree. The plaintiff still had ongoing discomfort, either in his back or leg, and his ability to work for longer periods was affected to a greater degree.
214	Mr Peter Turner, orthopaedic surgeon, examined the plaintiff for a second opinion on 19 August 2002 at the request of Dr Russo.
215	Having seen the May 2002 MRI, and in view of the persistent and significant symptoms of which the plaintiff complained, Mr Turner discussed the possibility of a surgical discectomy with the plaintiff. At the end of that discussion, the plaintiff expressed the wish to go away and further consider the matter before making a decision.
216	Mr Turner believed the plaintiff’s symptoms were due to the disc prolapse as demonstrated on the MRI. In his view, such an injury would be consistent with the plaintiff having been involved in heavy and repetitive work, with or without a specific injury being identified.
217	Mr Russell Miller, orthopaedic surgeon, examined the plaintiff on 10 May 2005, 2 July 2008, and most recently on 27 January 2010.
218	On the first examination, the plaintiff reported low-back pain and discomfort with radiation into the right leg, together with numbness and tingling and some weakness in the muscles around the right foot. The plaintiff, at that stage, had had a recent episode of quite severe low-back pain, and had been off work for a couple of days.

219 On examination, there was restriction of lumbar movement, diffuse tenderness, and lower lumbar muscle spasm. Neurological examination of the right foot revealed diminished sensation on the dorsum and sole of the foot and on the lateral aspect of the right leg. There was an absent right ankle jerk. The plaintiff had decreased power of plantar flexion and dorsiflexion at the ankle, and plantar flexion and dorsiflexion of the right toe.

220       At that time, the plaintiff was working full-time in a less physical area, and did some courier work.

221       On the basis of the history given, it seemed to Mr Miller that the plaintiff’s symptoms related to his heavy physical work and the first incident.

222       At that stage, Mr Miller thought it possible the plaintiff could require further surgical treatment. He thought the plaintiff would be left with long-term work restrictions which would include no repetitive bending or lifting, or lifting of weights more than ten kilograms. The plaintiff would also have to change his posture on a regular basis. Mr Miller thought it was not possible to determine the plaintiff’s long-term work capacity, as he had had a significant flare-up of symptoms.

223       On the second examination the plaintiff told Mr Miller of the second incident, and that his return to work on restricted duties and hours was largely unsuccessful.

224       The plaintiff told Mr Miller that after the second operation, he returned to work in November. As his work increased, he found his symptoms increased, and he eventually ceased work in approximately March 2008.

225       On that examination, the plaintiff reported low-back pain and discomfort which radiated into the right leg with intermittent numbness and tingling. The leg pain was quite significant, and the plaintiff reported only quite modest improvement following the second operation..

226       On examination of the lumbar spine, there was diffuse lumbar tenderness and restriction of movement. There was an absent right ankle jerk, diminished sensation on the outer border and dorsum of the right foot, and diminished power of extensor hallucis longus and calf muscle weakness.

227       Mr Miller personally reviewed the MRI of 5 May 2008. Mr Miller believed the plaintiff’s long-term prognosis was fair to poor. He repeated his comments as to the involvement of the first incident, and noted the flare-up of symptoms following the second incident. Mr Miller thought the latter had made only a moderate contribution to the evolution of the plaintiff’s spinal disease compared to the effects of the first incident.

228       Mr Miller noted there was a possibility that the plaintiff may require further surgery in the form of a fusion. He thought at that stage the plaintiff’s symptoms were substantially stabilised, and he did not anticipate further improvement.

229       In Mr Miller’s view, which he confirmed on later examination in January 2010, the plaintiff is not fit for his pre-injury work, and could not return to significantly physical work or work that required repetitive bending, lifting or lifting of weights more than five kilograms. The plaintiff needed to be able to change posture. Mr Miller noted that a return to work would be problematic, given his understanding of the plaintiff’s work experience and educational level.

230       Mr Miller concluded that the plaintiff’s employment with the first defendant was a cause of his low-back condition, and his employment with the second defendant was a lesser cause.

231       On balance, Mr Miller thought the plaintiff was likely to have had his low-back condition notwithstanding the accident with the second defendant. He believed the plaintiff’s pre-existing problem predisposed the vulnerability and susceptibility of his back, but he believed the second incident had made a contribution to the evolution of spinal disease. Whilst saying it was a difficult task, he apportioned seventy five per cent of the plaintiff’s back condition to the first defendant, and twenty five per cent to the second.

232       On final examination, the plaintiff continued to complain of the same symptoms, which fluctuated, and it was noted there was no pattern towards deterioration.

233       On examination, there was diffuse tenderness and lower lumbar muscle spasm and restriction of movement of the lumbar spine. There was an absent right ankle jerk and diminished sensation on the outer border and dorsum of the right foot.

234       Mr Miller thought that there was not a likelihood that the plaintiff would benefit from further surgical intervention.

235       Mr Miller confirmed his view that the dominant factor in presentment was the first incident, and he changed his apportionment to ninety per cent to the first incident and the balance to the second incident.

236       Mr Brownbill, consultant neurosurgeon, examined the plaintiff for medico-legal purposes on 20 August 2008.

237       The plaintiff told him his back pain fluctuated in severity and was present all the time. He had buttock and back of thigh and side of calf pain to the foot and the right leg. Present all the time was an overriding intermittent shooting pain. There was numbness on the top of the plaintiff’s right foot and the right of his calf.

238       On examination, there was two thirds full range of flexion and extension, and lateral rotation and flexion were full. There was reduced power of right foot eversion, absence of the right ankle jerk, and decreased sensation over the outer aspect of the right lower leg and top of the foot.

239       Mr Brownbill considered the plaintiff suffered a lumbar intervertebral disc derangement in the first incident, with resulting back and leg pain which continued since then with fluctuations and exacerbations.

240       Mr Brownbill considered that, on probability, subsequent flare-up and disc re-prolapse had resulted in a major part of the natural history of the disc damage suffered in the first incident. He noted that the plaintiff in future would need to avoid activities involving heavy lifting, forced spinal mobility, repeated bending or prolonged standing or sitting.

241       Mr Brownbill considered the plaintiff’s employment with the first defendant was a cause of his lower back condition. The employment with the second defendant resulted in an aggravation of the pre-existing lumbar intervertebral disc derangement with increasing pain. It was therefore an aggravation rather than a cause of lumbar spine intervertebral disc derangement.

242       Mr Brownbill concluded, on probability, as a result of the condition caused in the first incident, the plaintiff would have ongoing lower back and leg pain which required activity restriction. Mr Brownbill thought on probability the plaintiff was likely to have his current back condition irrespective of any contribution from the second defendant, given the vulnerability and susceptibility of his back caused by his employment with the first defendant.

243       Whilst it was not possible to apportion exactly the contribution to the plaintiff’s lower-back injury by various described incidents, Mr Brownbill regarded a contribution in the order of eighty per cent with the first defendant and twenty per cent with the second defendant.

244       Taking into account the plaintiff’s physical restrictions, his education and his place of residence in the country, Mr Brownbill considered, on probability, the plaintiff would have difficulty in obtaining employment for which he was suited.

245       Dr Clayton Thomas examined the plaintiff on two occasions, initially on 30 October 2008, and more recently on 3 February 2010.

246       On initial examination, the plaintiff had an absent right ankle jerk. There was wasting of his right calf by two centimetres. He had decreased sensation in his right leg involving the L5 and S1 nerve root, and he had a weakness of his left big toe extensor.

247       On examination on that date, Dr Thomas felt the plaintiff had very significant problems. Dr Thomas considered employment with both defendants was a cause of the plaintiff’s low-back condition.

248       Dr Thomas did not think it possible to indicate the plaintiff’s current back condition would have occurred irrespective of any contribution from Blue Scope. He thought the second incident was not insignificant, and that this event was of a sudden stress overload to the lumbosacral disc leading to the disc prolapse. Dr Thomas accepted that in the absence of the previous vulnerability to his lumbar spine that stemmed from working with the first defendant, the second incident may not have otherwise led to the disc prolapse occurring.

249       Dr Thomas thought the first incident was the start of the plaintiff’s overall demise. Nonetheless, despite that, the plaintiff was able to return to work in a productive manner until the second incident which was in many ways ‘the straw that broke the camel’s back’. Mr Thomas apportioned contribution at sixty per cent with the first defendant, and forty per cent with the second defendant. He made this apportionment because he felt that the first defendant’s employment was the predominant cause of the plaintiff’s current condition, notwithstanding the worsening of his disability after his employment with the second defendant.

250       Dr Thomas noted the plaintiff would not have been able to return to his pre- accident work with the first defendant, and he had never returned to such work capacity. He had remained on alternate and lighter duties from the date of the first incident into the future. Despite that, the plaintiff had been able to undertake suitable employment. He was able to return to full-time work and do that for a prolonged period of time, notwithstanding aggravations from time to time, and notwithstanding the fact that one of those aggravations was quite significant, ultimately leading to his employer taking away the duties that he was performing and putting him on alternative duties which were more physically demanding for the plaintiff and with which he could not cope.

251       Dr Thomas thought the plaintiff could lift ten kilograms frequently between waist and chest height and an occasional lift in excess of that weight between floor to above chest height. He could work in such a capacity fulltime.

252       Dr Thomas noted however, following the second incident, that the plaintiff’s level of disability worsened significantly. He was able to get back to work following this, but could only manage three and a half days a week, and the work was light. Dr Thomas thought the plaintiff’s level of incapacity was marked.

253       Similar findings were made by Dr Thomas on the second examination. He repeated his views that employment with the first defendant was a significant contributing factor to the low-back injury. He noted that although the plaintiff had pre-existing complaints of back pain, he was able to function at a moderately high demand despite that.

254       In Dr Thomas’ view, the employment with the second defendant was a significant contributing factor to an aggravation of the plaintiff’s pre-existing condition, and led to a deterioration of the injury and the requirement for further surgery.

255       Dr Thomas thought the plaintiff would not be able to return to a full-time unrestricted manual type occupation. He placed a five kilogram lifting limit between waist and chest height frequently, and an infrequent lift below waist or above chest height. Within those restrictions he thought the plaintiff could work reliably for twenty hours a week without an aggravation of his condition.

326       Based on the history and the details, including the copious GP and specialist notes, Mr Schutz assessed apportionment of the back condition and right sciatic problem with foot drop over the years as to two per cent to 1999, ninety per cent to 2002, five per cent to employment with the second defendant before the second incident, one per cent to the second incident, and two per cent to the sneezing episode.

327       Mr Schutz concluded that given the sequence after the first operation, and noting the previous 2005 CT and 2006 MRI scans, he was practically certain that the plaintiff would have ended up in the same position, requiring a second operation with the probability of some continuing symptoms, regardless of his general employment with the second defendant and/or the second incident.

328       As the plaintiff presented in December 2008, and with his known pathology and physical findings, Mr Schutz thought the plaintiff was not fit to do the full range of duties as suggested involving front counter sales, customer training, maintaining the show room, picking products for customers, same-day pickups, product handling, putting stock away, and occasional customer site visits.

329       In Mr Schutz’s view, the second incident simply contributed to a symptom which did not improve to the extent of previous improvement. He noted that there was ample evidence from the history of a pre-existing failure to fully recover after the first operation. Mr Schutz thought that deterioration to the point of requiring treatment, including surgery, was inevitable as a result of the first condition. He did not consider that the need for the second surgery was materially due to the second incident.

330       Counsel for the second defendant tendered a summary of the plaintiff’s attendances with Dr Russo. In particular, reference was made to two attendances.

331       On 29 January 2007, it was noted:

“Dr Nurse. Patient’s wife rang. Lee hurt back yesterday. This morning awoke to find husband much worse. Inability to walk even to the toilet. Took Tramal and Voltaren (no relief of pain). Lee claims its due to increase in weight that it is so painful. I explained to wife that they need to call an ambulance for pain relief and transport to hospital….mc.”

332       Two days later, the plaintiff attended Dr Russo and was prescribed Voltaren, Losec, Mobic and Tramal.

333       In an entry before 14 June 2007, which the plaintiff thought was at Easter, the note read:

“More on spasm. At camp. collapsed in car. may need re operation.

family issues worsened.”

334       There were five attendances with Dr Russo in 2005. The following year the plaintiff attended Dr Russo four times and in 2007, seven times. During this period, Tramal was prescribed, with Voltaren also prescribed at times.

Return to Work Program

335       Counsel for the second defendant tendered an Offer of Suitable Employment dated 24 March 2008 setting out a return to work program commencing on 24 March 2008 at 26.5 hours involving the following restrictions: avoiding lifting in excess of five kilograms; forceful pushing or pulling activities; movement of the plaintiff’s back beyond one third of the normal range; prolonged static postures, such as sitting or standing in the same position for more than forty five minutes at a time. It was proposed the hours off work on these duties increase to 34 hours by week five, commencing 21 April 2008.

336       Mr Rodney Simm, orthopaedic surgeon, examined the plaintiff on 28 February 2003 at the request of QBE.

337       At that time, Mr Simm diagnosed a right-sided posterolateral L5-S1 disc protrusion with L5 and S1 nerve-root involvement. He thought the plaintiff’s prognosis was uncertain, and he expected the plaintiff to continue to improve at least twelve months after back surgery. He thought chronic back and leg symptoms may occur, and it was possible those symptoms may incapacitate the plaintiff for his pre-injury employment.

The Second Defendant’s Lay Evidence

338       Mr Silvano Inserra swore an affidavit on 1 June 2009. He was employed by the second defendant as a business manager, and was the site manager at the second date. He deposed the plaintiff was employed as a full-time counter sales person, commencing work on 21 November 2005.

339       Prior to commencing that work, the plaintiff did not inform him that he had suffered any back condition.

340       The plaintiff was given a safety induction. Although being made aware of the need to report all incidents immediately, the plaintiff did not report the second incident until two days thereafter.

341       After the alleged injury, the plaintiff returned to work on suitable employment on a part-time basis and was placed at the customer services counter, where he was not required to pick stock and was able to sit and stand as he took orders from customers.

342       The plaintiff was gradually building up his hours of work, and seemed to be coping quite well, working up to thirty four hours a week, but in April 2008, the plaintiff informed Mr Inserra that he could not return to work due to a sneezing episode at home which had aggravated his back condition, requiring him to take two months off work.

343       On return to work, the plaintiff was unable to work thirty four hours a week.

Overview

344       As the first defendant conceded pain and suffering at the outset of the hearing, the only issue remaining in that application is whether the plaintiff has a serious injury in relation to loss of earning capacity in relation to the first incident.

345       If I accept that the plaintiff has established the requisite financial loss, which the first defendant denies, counsel for the first defendant submitted that whilst the first incident was conceded to continue to contribute to the plaintiff’s current condition, perhaps even in a major way, as some medical evidence suggested, such financial loss did not occur until after the second incident, before which time the plaintiff had worked full time light duties for five years.

346       Counsel for the plaintiff relied on the decision of Zlateska v Consolidated Cleaning Services [2006] VSCA 141, where the Court noted that under the Act, as at common law, the employer takes the employee as it finds him:

“… The question of causation relates to the particular interaction between the employer and the worker in question. The question must always be: what caused the injury to this worker? … .”

(paragraph 85)

347       In this context, counsel for the first defendant also relied on similar comments made by Maxwell, P in Spence & Anor v Gomez [2006] VSCA 48.

348       It was also submitted that Barwon Spinners (supra) made it clear that the Court must look at the consequences flowing from each injury. If the plaintiff has established the requisite financial loss, it was only after the second incident that the plaintiff suffered the requisite loss for the purposes of his application.

349       In such circumstances, it was submitted by counsel for the first defendant that the plaintiff’s claim against it in this regard should fail.

350       In relation to both applications, the issue to be determined is whether the plaintiff has suffered the requisite loss of earning capacity on a permanent basis.

351       Counsel for the second defendant suggested a different approach be taken to that proposed by counsel for the first defendant when considering this issue.

352       Counsel for the second defendant agreed with the approach proposed by counsel for the plaintiff, who submitted that I should first consider whether the plaintiff presently had a loss of forty per cent or more of his pre-injury earning capacity which was permanent, and if that question was answered in the affirmative, then decide whether the first incident and/or the second incident was a cause of that level of the plaintiff’s incapacity – the test enunciated by Ashley, JA in Grech v Orica Australia Pty Ltd (supra).

353       The plaintiff also seeks leave to bring proceedings for pain and suffering against the second defendant.

354       Counsel for the second defendant, whilst denying the plaintiff’s claim generally, raised a preliminary point, namely that there was not a compensable injury resulting from the second incident.

355       It was submitted that the plaintiff’s current condition, following the second operation, would have occurred in any event. It was submitted that in such circumstances, the second incident was not a significant contributing factor to the plaintiff’s present condition.

356       Further, it was submitted by counsel for the second defendant that if there was found to be any aggravation of the plaintiff’s condition as a result of the second incident, such aggravation was not serious.

357       I am satisfied that the plaintiff suffered a compensable injury in the second incident.

358       Mr Kavar confirmed that there was a further trauma to the plaintiff’s back in the second incident when the plaintiff fell. There was more muscle spasm, physiological change had taken place and the fall had exacerbated the recurrent disc prolapse at L5-S1. A new injury involving the right groin was suffered. Further, there were more significant findings at L5-S1 on MRI in May 2007 than had been indicated in October 2006.

359       Having found there is a compensable injury which materially contributes to the plaintiff’s current condition as I detail later in my judgment, I am not required to consider the submission that the plaintiff would be in his present state regardless of the second incident.

360       Medical opinion as to the inevitability of the plaintiff coming to his current condition, regardless of the second incident, is divided

361       This is a matter which goes to the question of damages at trial in relation to which the second defendant will carry the burden of proof.

362       In this case, where there is a pre-existing back condition, I must consider what the evidence discloses as to the prior condition of the plaintiff and determine whether the additional impairment resulting from the second incident is serious and permanent.

363       In Petkovski v Galletti [1994] 1 VR 436, the Full Court of the Victorian Supreme Court accepted the proposition that –

“A comparison must be made of the condition of the applicant immediately before the accident with his condition thereafter and an assessment made of the extent of that additional impairment and if that additional impairment was not serious so it was said then leave must be refused. …”

364       In both Angelatos v Museum of Victoria [1999] 3 VR 157, at 162-163 and at 168, and in RJ Gilbertsons Pty Ltd v Skorsis (2000) 12 VR 386, per Chernov JA at para 40, the Court of Appeal accepted that the principles in Petkovski v Galletti (supra) applied equally to serious injury applications under the Act.

365       In accordance with the principles in Grech v Orica Australia Pty Ltd and Anor supra, provided the plaintiff establishes that the subject compensable injury in 2007 materially contributes to his impairment and its consequences and will continue to do so permanently, the role of other injuries does not preclude a court concluding that there is the appropriate causal link between the compensable injury and the consequences relied upon.

366       Whichever approach is followed, the plaintiff, to reach the threshold of serious injury, is required to establish the aggravation from the second incident is permanent at the time of the hearing in its effects on the lower spine and the effects of the aggravation must be serious: Barwon Spinners Pty Ltd v Podolak (supra).

367       I accept the evidence of the plaintiff and Mr Kavar that the plaintiff’s condition was manageable until the second incident and his work capacity thereafter was further compromised leading up to the plaintiff experiencing increasing problems with work before the sneezing episode in March 2008.

368       Whilst the plaintiff on the narrative test may have had a serious injury as a consequence of the first incident, as conceded by counsel for the second defendant, since the second incident, the plaintiff has never returned to the manageability or the level of symptoms or level of activity that he had in the five years prior thereto. Further, he has lost his general level of mobility enjoyed before suffering further injury.

369       As Ashley, JA, in Alcoa of Australia Ltd v McKenna (2003) 8 VR 452, at paragraphs 62 and 63, and also Buchanan, JA in R J Gilbertsons Pty Ltd v Skorsis (supra), at paragraph 27, held separate injuries can result in the one serious injury.

370 Dealing firstly with the loss of earning capacity claim, the assessment of serious injury is to be made at the time the application is heard by the Court – Section 134AB(38)(j).

371       To obtain leave in relation to loss of earning capacity, the plaintiff must establish that –

(a)	at the date of the hearing he has a loss of earning capacity of forty per cent or more – S.134AB(38)(e)(i); and also
(b)	after the date of hearing the relevant loss of earning capacity will continue permanently – s.134AB(38)(e)(ii).

372       The measurement of loss of earning capacity is set out in paragraph (f) which requires a comparison between:

(i)	“without injury” earnings; and
(ii)	“after injury” earnings.

373 The former must be calculated by reference to the six year period specified in s.134AB(38)(f).

374       “Without injury” earnings consist of the gross income (expressed at an annual rate) that the worker was earning or was capable of earning from personal exertion or would have earned or would have been capable of earning from personal exertion had the injury not occurred.

375       It is to be calculated by reference to that part of the period within three years before and three years after the injury as most fairly reflects the worker’s earning capacity.

376       The plaintiff carries the onus of proof in relation to economic loss and particularly in establishing satisfaction of the criteria in paragraphs (e), (f) and (g) therein: see Barwon Spinners Pty Ltd & Ors v Podolak (supra), at para 70.

377       I am therefore required to determine a “without injury” earnings figure,

378       The “without injury” earnings figure is not really in dispute, with counsel for the second defendant suggesting a figure in the range of $40,000 to $44,000. Sixty per cent of that higher figure is $26,400, or $507 per week.

379       These figures were not disputed by counsel for the plaintiff.

380       To succeed in his application, the plaintiff must establish that on a permanent basis he does not have the capacity to earn in excess of $507 per week.

381       At the date of hearing, the plaintiff’s income from personal exertion is nil.

382       The plaintiff believes that he has the capacity to work only two or three hours a day in very light work a couple of days a week.

383       Various scenarios were put by counsel for second defendant as to the plaintiff’s current earning capacity in a number of jobs.

384       Hourly rates for the jobs suggested by Healthe Work were as follows:

ƒ	internal sales - $21 per week;
ƒ	sales assistant, hardware store or similar - $18.20 per week;
ƒ	courier driver - $20 per week; and
ƒ	dispatch officer - $25 per week.

385       It was submitted that the plaintiff had the capacity to undertake light duties working more hours than he claimed.

386       If the plaintiff worked in excess of 23 hours per week as an internal sales clerk, 28 hours as a sales assistant, 25 hours per week as a courier driver and 20 hours per week as a despatch officer he would not suffer the requisite loss.

387       As conceded by counsel for the second defendant, the plaintiff was a frank and honest witness. After suffering injury in the first incident and then undergoing the first operation, the plaintiff continued to work full time in various jobs, undertaking alternative duties until the second incident.

388       The plaintiff is a hard working man who has got on with his life despite significant problems with his back. As Nettle JA commented in Dwyer v Calco Timbers Pty Ltd (No 2) (2008) VSCA 260, at paragraph 4, that he suspected:

“… but for the way the appellant has been prepared to put up with his pain and suffering and get on with his business as best he can, the respondent may well have not disputed his claim … But it would be unfortunate and in my view wrongheaded if in future such an applicant were treated less favourably than another who, being of less strength of character, simply resigned himself to his injury.”

389       Until the second incident and surgery thereafter, the plaintiff had a capacity to undertake full time restricted duties and his condition was manageable, as Mr Kavar described. That situation changed after the second incident, with the plaintiff only able to increase his hours to thirty four hours on one occasion, after which he was no longer able to cope with working at this level, or at all.

390       Given the problems demonstrated with employment following the second incident, I do not accept that the plaintiff has the capacity to do courier work or work involving a static posture on anything other than a very limited part time basis. Further, the plaintiff would have to be able to change his position when he felt discomfort and any job could not involve lifting beyond a very small weight, such as five kilograms.

391       The plaintiff’s computer skills are basic and not up to the level required in a job such as the one the plaintiff attempted with Schenker, where he lasted only a week because he was “in over his head”. The plaintiff’s ability to undertake this office or administrative type work, or retrain to do so, is limited by his education, his reading and writing skills, as indicated by Mr Bartram’s testing in 2002 and the plaintiff’s self assessment which I accept.

392       Clearly, the plaintiff does not have a capacity for unrestricted manual employment and this has been the case since the first incident. Since that time he has only been able to undertake less physical work and he has experienced ongoing problems whilst doing that work, with occasional flare- ups and the need for medication. Since the second incident, this capacity has been further reduced, with the plaintiff ceasing work in March 2008.

393       Save for Mr Jones, who considered the plaintiff fit for his pre-injury duties, the consensus of medical opinion is that the plaintiff has a capacity for restricted, light manual work of varying hours. Mr Brownbill however thought the plaintiff would have difficulty obtaining suitable employment.

394       Mr Kavar considered the plaintiff has the potential to return to light work on a monitored basis on limited hours but he would not be completely reliable in terms of his foot function. In his view the plaintiff could manage between two to four hours a day before the discomfort became too much of a problem.

395       Professor Balla thought it possible the plaintiff would return to some form of employment but probably part time and not requiring physical work. Mr Nye considered the plaintiff fit for part time work on alternative duties. Dr Thomas thought the plaintiff could work reliably for twenty hours per week within significant restrictions on the type of duties he could perform.

396       I accept the plaintiff’s evidence as to his work capacity. He has always tried to work following back surgery. He had limited success on his return to work after the second incident. He was not managing with hours increasing to thirty four hours per week over three full days and a half day. He reported increasing aggravation and spasms to Dr Russo before he ceased work in March 2008.

397       Further, of more recent times, the plaintiff experiences problems with activity on a day to day basis at home which has made it clear to him that he could not work more than a couple of hours a day in very light work.

398       Taking into account all of the evidence, I am satisfied that the plaintiff does not have the capacity to work more than two or three hours per day spread out over the week. In such circumstances, the plaintiff has therefore suffered a loss of earning capacity of forty per cent.

399       Whilst the plaintiff has only established a forty per cent loss of earning capacity since the second incident, the first incident was a cause of this current incapacity and, in such circumstances, the application against the first defendant also succeeds in accordance with the principles in Grech (supra).

400       Whilst there are different views as to the contribution of the work with both defendants to the plaintiff’s present condition, the preponderance of medical opinion is that both continue to play a part.

401       Mr Kavar and Professor Balla apportioned contribution at ninety per cent to the first defendant and ten to the second. Mr Miller ultimately came to the same conclusion. Mr Schutz also attributed ninety per cent to employment with the first defendant and split up the remaining ten per cent, attributing six per cent thereof to the second defendant.

402       Dr Thomas considered employment with each defendant was a significant contributing factor to the plaintiff’s present condition, with sixty per cent due to employment with the first defendant and forty per cent to the second. Mr Weaver thought both employments had contributed, and Mr Nye felt each employment was fifty per cent responsible.

403       Whilst the plaintiff himself conceded his marital and emotional problems have played a part in his failure to return to work since March 2008, I accept his physical incapacity, which is of a permanent nature, has played a major role in this situation and will continue to do so when his personal life settles down.

404       I accept that the plaintiff does not have the capacity to work more than fifteen or so hours per week in very light work. On that basis, the plaintiff does not have the capacity to earn in excess of $507 per week and he has suffered the requisite statutory loss of forty per cent .

405       There is no suggestion by any medical practitioner that there is any likelihood of improvement in the plaintiff’s back condition in the future. Mr Jones in fact thought there was a possibility of further deterioration of back pain and possibly leg pain in the future. In Mr Kavar’s view, the natural degenerative changes predict that over time the plaintiff’s back condition is going to get worse.

406       In such circumstances, I accept the plaintiff’s loss of earning capacity is permanent.

407       I am also required to consider issues of retraining and rehabilitation pursuant to subsection (g) .

408       In light of my findings as to the plaintiff’s impairment and incapacity for employment I am satisfied that there is no rehabilitation or retraining that would be appropriate to be undertaken by him which would alter the situation that he has a permanent loss of earning capacity of forty per cent or more.

409 As rehabilitation and retraining have nothing to offer the plaintiff in terms of his capacity for employment, the plaintiff has satisfied the requirements of section 134AB(38)(g).

410       As the plaintiff has satisfied the test laid down by the Act in relation to loss of earning capacity, then he is at large to make a claim for damages, i.e. both for pain and suffering and loss of earning capacity: see Forrest, J in Acir v Frosster Pty Ltd [2009] VSC 454, at paragraph 147, and Advanced Wire & Cable v Abdulle (2009) VSCA 170.

411       Accordingly, I grant leave to the plaintiff to bring proceedings for loss of earning capacity in relation to the first incident, pain and suffering having already been conceded.

412       I also grant leave to the plaintiff to bring proceedings for both pain and suffering and loss of earning capacity in relation to the second incident.

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