Ediriweera v Victorian WorkCover Authority

[2012] VCC 1636

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CIVIL DIVISION

Revised
Not Restricted
Suitable for Publication

DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION

Case No.  CI-11-03508

HOBBY EDIRIWEERA	Plaintiff
v
VICTORIAN WORKCOVER AUTHORITY	Defendant

---

JUDGE:	HER HONOUR JUDGE K L BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:	24 and 25 October 2012
DATE OF JUDGMENT:	29 November 2012
CASE MAY BE CITED AS:	Ediriweera v Victorian WorkCover Authority
MEDIUM NEUTRAL CITATION:	[2012] VCC 1636

REASONS FOR JUDGMENT
---

Subject:  ACCIDENT COMPENSATION
Catchwords: Injury to the lumbar spine – vulnerable spine – pain and suffering only
Legislation Cited:  Accident Compensation Act 1985, s134AB(16)(b), s134AB(37) and (38)

Cases Cited: Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz [2012] VSCA 60; Ansett Australia Ltd v Taylor [2006] VSCA 171; Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; Altona Bus Lines & Anor v Lococo [2002] VSCA 159; Lu v Mediterranean Shoes Pty Ltd (2000) 1 VR 511; Scholte v Transport Accident Commission [2012] VCC 1458; R J Gilbertsons Pty Ltd v Skorsis (2000) 12 VR 386; Dordev v Cowan & Ors [2006] VSCA 254.

Judgment:  Application dismissed.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J P Brett	Arnold Thomas & Becker
For the Defendant	Mr B R McKenzie	Herbert Geer

HER HONOUR:

1 This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of his employment with Leading Synthetics (“the employer”) on 5 February 2000 (“the said date”).

2       The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering only.

3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act.  There, “serious” is defined relevantly as meaning:

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

4       The body function relied upon in this application is the lumbar spine. 

5       The plaintiff relied upon two affidavits and gave viva voce evidence.  He was cross examined.  Mr Schofield was required to attend for cross examination.  In addition, both parties relied on medical reports and other material which was tendered in evidence.  I have read all the tendered material.

Outline of Section 134AB

6       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.

7       The impairment of the body function must be permanent, in the sense that it is likely to continue into the foreseeable future.

8       The plaintiff bears an overall burden of proof upon the balance of probabilities. 

9       By ss(38)(c) of the Act, the impairment must have consequences in relation to pain and suffering 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 “more than significant” or “marked” and as being “at least very considerable”.

10      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.

11      Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.

12      I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 and AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz [2012] VSCA 60 in reaching my conclusions.

The Plaintiff’s Evidence

13      The plaintiff is presently aged forty one, having been born in July 1971 in Sri Lanka.  He came to Australia in about 1992, having completed secondary school.

14      On his arrival in Australia, the plaintiff did an English language course full time for about twenty weeks. 

15      The plaintiff can speak and understand English, but has some difficulties expressing himself and making his exact meaning understood.  He can read in English; however, his writing is poor, and he has trouble with spelling and grammar.

16      In cross examination, the plaintiff said English was a bit of a barrier for him but he could understand what counsel for the defendant was saying.  His spoken English had improved a lot in the last four years by listening to the radio.

17      Having completed the English course, the plaintiff then studied for various accounting subjects at TAFE, attempting to obtain an advanced diploma.  He passed many subjects but never completed the course, and stopped studying in about 1997.  He was good at maths but stopped studying because of the English barrier and difficulty with spelling. 

18      The plaintiff later obtained a Security Certificate 2 and also a Process Manufacturing Certificate 3.  He never, however, worked as a security worker.

19      In about 1997, the plaintiff commenced employment as a process worker and a machine operator with the employer.  Before starting that job, the plaintiff, while studying, had done part time work from time to time, mostly as a cleaner.

20      Prior to the said date, the plaintiff had not had any back injury or back problems and was very fit and active.  He worked four eight-hour shifts and two twelve-hour shifts per week with the employer.

21      On the said date, the plaintiff was working on a machine which contained bobbins of synthetic yarn.  He was required to lift the bobbins and place them on a rack.  As he lifted a bobbin from a height of about one-and-a-half feet from the floor, the plaintiff felt severe low back pain of an electric type nature, which was completely disabling (“the incident”).  He then had to be conveyed from his workplace to the Northern Hospital (“the Hospital”) by ambulance. 

22      In his second affidavit sworn on 24 October 2012, the plaintiff denied there was any automatic machine available for the lifting of bobbins, an activity which the plaintiff undertook consistently and frequently throughout each shift.

23      In cross examination, the plaintiff confirmed he had problems with his legs from the time of the incident, mainly the left leg, but he got pain in both legs.  He had leg pains “one hundred per cent”, he could not do anything and he was totally disabled.

24      At the Hospital, the plaintiff was given analgesics, and an x‑ray was taken.  From there he went home and spent the next few days lying on the floor on his back, as that was the only way he could get relief from very severe low back pain.

25      In cross examination, the plaintiff could not explain why the Hospital report of his attendance on the said the date did not contain any reference to leg pain or weakness.  When he left the Hospital, the plaintiff could not walk and he had massive pains.

26      The plaintiff said some things are difficult to remember but some memorable things you can remember, like the massive pain in his leg in the Hospital. 

27      The plaintiff attended Dr Pathak on 8 February 2000.  The plaintiff had a CT scan, and later physiotherapy, at Preston Central Clinic and he deposed he may also have had treatment from general practitioners in another High Street clinic.

28      In cross examination, when it was put to the plaintiff that Dr Pathak made no mention of a complaint of leg pains, the plaintiff said he in fact did have leg pains.  He could not remember what he told Dr Pathak about his leg pain; it was a long time ago.

29      The plaintiff agreed that he had not changed his second affidavit to include a complaint of leg pains, although he had made other amendments to his first affidavit.

30      The plaintiff deposed that in March 2000, he saw Mr Kiellerup, an orthopaedic surgeon.  In cross examination, the plaintiff could not remember this visit or any subsequent review by Mr Kiellerup. 

31      The plaintiff deposed that following the incident, he was off work for a period of time, and then returned on part time restricted light duties and he never returned to pre injury duties. 

32      In cross examination, the plaintiff explained that on his return to work, he was not doing any heavy lifting.  He was just doing light duties, cleaning nuts and bolts, and he did not work with bobbins.

33      Further, the plaintiff could remember initially starting back at work on two hours a day, and gradually increasing his hours.  He could not remember returning to working fifty six hours’ work per week.  He could not recall telling Mr Bradford, an occupational therapist, who was helping him get back to work, that he was coping well with that level of work.

34      The plaintiff confirmed his duties on his return to work did not involve working on the first floor lifting bobbins as he had done prior to the incident.  He could not remember if he was working in the spinning area.  He could remember he worked on the second floor.   

35      In cross examination, the plaintiff was asked about his September 2004 statement in which he set out he was off work for two to three months after the incident and then returned to full normal duties.  He said that was wrong, because he has not lifted bobbins and he did light duties after the incident.

36      Whilst the plaintiff agreed he signed that statement, although it was not an excuse, he explained that his English at that time was not as good as it now is.

37      The plaintiff was also shown a Health Statement signed by him on 14 August 2002 in relation to his job application with Marsden & McGain (“Marsden”) in which he denied any previous back problem or any previous injuries.  The plaintiff explained that the only way to get the job was to say he was fit to do things, so he lied to get that job.  He had gone through a lot of agencies and tried to get a job.  He had been unemployed for a while and when he told other potential employers he had injuries, he never got the job.

38      The plaintiff agreed he passed the pre placement medical for the Marsden job at Northern Industrial Clinic in August 2002 and at that time his back and leg were found to be normal.

39      In a Hepatitis B vaccination form from the Northern Industrial Clinic dated 15 July 2005, the plaintiff answered “no” to suffering any medical or serious illness in the past.  He explained that he often ticked “no” on forms because he then would not have to give more details in English, as would have been the case if he ticked “yes”.

40      The plaintiff agreed he told Mr O’Brien on examination in 2010 that he had an acute episode of back pain, being off work for approximately three months in 2000. 

41      The plaintiff could not recall telling Mr O’Brien that following that, the pain resolved and he returned to full activity and that he had then had very mild occasional mild back pain since that time.  If that was what Mr O’Brien recorded, the plaintiff agreed that was what he would have told him.

42      The plaintiff could not remember what he said to Ms McKenzie in October 2004, but if she recorded various details he must have told her.  It was a long time ago.  He could not remember telling Ms McKenzie his back had completely resolved, nor could he recall complaining to her of leg pain.

43      After five months back at work after the incident, the plaintiff was made redundant with ten or twelve other workers.  He was then off work for about six months.  He had some short term work through an agency, but could not remember the details thereof.

44      In cross examination, the plaintiff agreed he worked short term as a factory hand at Caroma.  He then worked as night filler at Safeway.  That job only lasted for a couple of weeks.  The plaintiff was required to drag pallets around, bend and twist to take boxes of stock off the pallets and also to open boxes.    

45      Later in 2002, the plaintiff commenced work with Marsden in Coburg as a machine operator.  The plaintiff deposed he remained in that job for about five years.  The job required him to be on his feet for eight to twelve-hour shifts, but there was no lifting involved. 

46      The plaintiff deposed that in about 2004, there was a flare up of back pain, both upper and lower, with the lower back being the worst.  As a result, he could not cope with that job, being on his feet so long, and left that employ because of low back pain. 

47      In cross examination, the plaintiff disagreed that his job involved shovelling.  However, he might have been doing some scooping, putting metal components into a basket which varied in weight which were then conveyed by a crane.

48      This injury occurred whilst the plaintiff was working in the washing area when he experienced enormous pains.  These pains came on slowly and got bigger and bigger. 

49      In cross examination, the plaintiff agreed that he suffered an injury to his upper back and right shoulder in that job.  In answer to Question 21 on his Marsden claim form, the plaintiff described the cause of the injury being continuous bending and lifting while doing his normal work duties. 

50      The plaintiff could recall a crane falling but it did not hit him, as he described in his statement, although it might have touched him.  He fell to the ground because he was holding the crane.

51      The plaintiff could not recall back pain starting after the crane incident as he had described in his statement.  The plaintiff confirmed that from time to time in 2004 he had leg symptoms. 

52      In re examination, the plaintiff confirmed nothing physically happened to him in the crane incident and that he probably did not hurt his back at that time.

53      In cross examination, the plaintiff explained that after the 2000 injury, he had been to the doctor and he “skipped work” many times, but the 2004 injury was another injury that affected him a lot and that he could not go back to work and do things. 

54      Following the 2004 flare up, the plaintiff had chiropractic treatment from Mr Seddon in Glenroy, who ordered an x‑ray that year.  The plaintiff also had treatment from general practitioners at Mediq in Broadmeadows and saw general practitioners at the Northern Industrial Clinic.

55      In cross examination, the plaintiff confirmed that he had seen Dr Towie in Broadmeadows more than a couple of times in 2004.  He saw Dr Towie for about two years.  The plaintiff could not remember much about seeing Dr Tunaley in 2004.  He could not recall seeing any doctors in 2005.    

56      In early 2008, the plaintiff started seeing Dr Garg, because he often had to wait to see Dr Towie.

57      The plaintiff was then out of work for about a month, until he got a job as a truck driver in his own business for about six months.

58      The plaintiff then obtained work at Sleepeasy Bedding as a truck driver, where he worked for a year.  During that time, he continued to experience low back pain.  Occasionally, he had to carry a heavy mattress.  He left that job because his low back was sore, and partly because he was very stressed.

59      The plaintiff was then off work for about five months, during which time he worked in his own business, doing administrative work only, and employing two drivers.

60      The plaintiff then obtained work in July 2007 for Vedior Asia Pacific Pty Ltd (“Vedior”) driving for Nestlé.  There was no heavy lifting involved in the job, and the plaintiff made probably about twenty small deliveries a day to shops.  The heaviest item may have been a box weighing five kilograms, and he might occasionally carry two or three of them. 

61      Whilst working at Vedior, the plaintiff’s back flared up again in late December 2007 and early 2008, and he was off work for about six months following no specific incident.  He has never recovered from that flare up.

62      In cross examination, the plaintiff explained the Vedior job involved a lot of lifting and bending of boxes of food weighing up to ten maybe fifteen kilograms, he was not sure.  The plaintiff had to deliver the items to different locations and carry them inside.

63      At the end of 2007, the plaintiff was experiencing pain whilst driving and unloading and, as it was Christmas time, he kept working.  His lower back pain slowly became massive, so he could not do anything.

64      In cross examination, the plaintiff confirmed he had made a claim against Vedior.  He signed, but did not fill out a claim form in January 2008.  That form set out injury occurring as a result of manually lifting boxes, sitting for long periods of time, with the date of injury being 14 January 2008 and the plaintiff first noticing injury on 18 December 2007.

65      The plaintiff agreed with the description of his work at Vedior recorded by Mr O’Brien.  He agreed that he had massive pain just before Christmas doing his duties.  The plaintiff’s back froze and he also had leg pain.  He was disabled and required crutches.  He could not walk for weeks and just lay on the bed.

66      After the 2007-2008 flare up at Vedior, the plaintiff had treatment from Dr Towie.  He was referred to Mr Keng, orthopaedic surgeon, whom he saw in about early 2009.

67      The plaintiff returned to light office work and increased his hours to about full time.  That work ran out and his employment with Vedior ended in early 2009.  The plaintiff was then out of work until November 2009, when he started an owner/driver tip truck business.

68      At the time he swore his first affidavit in March 2011, the plaintiff continued to experience back pain.  At that stage, he would have liked to get back into a light job where he could just do administrative or office work, but had not yet found such a job that would put up with him not being able to be reliable.  Therefore he thought he was only capable of self employment.

69      The plaintiff has had treatment from two different psychologists, whose names he cannot recall.

70      When in Sri Lanka in July 2010, the plaintiff had some treatment involving applying pressure and the use of oil and herbal bags.  He had similar treatment in Sri Lanka in March 2009 when he went there to get married, and in 2010, when he went to his grandfather’s funeral.

71      As of March 2011, the plaintiff had constant low back pain which increased after sitting for thirty minutes.  In the mornings, his low back was stiff and sore.  This was also the case after work, and he often rubbed Deep Heat into his back.  He had a TENS machine which he used nearly every day. 

72      The plaintiff also had pain in the back of his left thigh, sometimes going below the knee, but not very often.  Sometimes he had pain in the right buttock and thigh, and sometimes when he bent he experienced an electric shock type pain travelling down his leg.

73      The plaintiff had to be very careful when bending, lifting or twisting.  He experienced quite severe back pain when sitting on a toilet, and sometimes electric shock type pain.  In the past, if he coughed or sneezed he had very strong pain which went down his left leg, but he no longer had that problem.  The plaintiff could walk, but if he did so for too long, he experienced increased low back pain and he often avoided running because of his injury.

74      The plaintiff went to the swimming pool but mostly just walked around in the water, because it hurt if he actually swam.

75      The plaintiff then had good and bad days all the time, with a lot of bad days on which the pain in his low back travelled down his legs to his foot.  His back was worse in bad weather.

76      The plaintiff’s back and leg pain woke him from sleep frequently, and he was often tired through the day.

77      The plaintiff was often frustrated and sometimes angry.  He felt a loss of self esteem because he could not work as he used to or earn the money he used to, and he worried about his financial future.

78      Then, even simple tasks like sweeping and mopping caused very marked pain.  So did washing the dishes at the sink, so the plaintiff had to bend forwards.  He had to avoid bending, lifting and twisting as much as possible.

79      The plaintiff was then taking 50 milligram capsules of Tramal, two at a time, up to six, and sometimes eight a day.  In addition, he took Panadeine or Panadol.

80      As of March 2011, the plaintiff drove as much as he could but was restricted to driving two or three days a week as that was all he could manage due to low back pain.  All he did was sit in the truck and drive.  Even that caused a marked build up of lower back pain, but he had to put up with it.  He could not take strong Tramal when driving, so at those times he only took a non prescription medication.  His only treatment was monthly visits to Dr Garg.

81      The plaintiff deposed that in November 2004, he started a business called Ceylon Jay Enterprises (“the business”) doing courier work.  He started off employing one driver, driving a Nissan 5‑tonne tray truck.  Later, the plaintiff purchased a tip truck and employed a driver to drive it.  As of March 2011, the plaintiff was driving the tip truck.

82      In or about 2005, the plaintiff transferred the business to a company called Ceylon HM Pty Ltd, which he owns and controls.  At times he has employed two drivers, and at times none.  At the time of his first affidavit, he had no employees and he was doing the driving.  The plaintiff found that work difficult, as it increased his low back pain and sometimes brought on leg pain.  He was then trying to find some type of office of administrative work, but that was not easy. 

83      In March 2011, the plaintiff was living in a house owned by his mother.  He lived there with her, his grandmother and his wife, whom he married in August 2009. 

84      In October 2012, the plaintiff deposed he always had problems with his lower back since the incident, but always wanted to keep working and do as much as he could.  At all times there have been good and bad days, but he has never had any sustained period with no back problem.

85      The plaintiff did not believe the incidents which affected his back in 2004 and 2008 would have affected it in the same way if his back had been healthy.  To him, it was like a situation of having a windscreen which cracked in 2000 and the crack had got worse since.

86      The plaintiff continues to work for his own business, Ceylon HM Enterprises.  He has a tip truck, and works carting sand and other materials on construction sites.  He does not have to do any physical work.  It is all done by switches or with the assistance of others.

87      However, the work involves getting in and out of the truck frequently, and that is good for the plaintiff because it gives him the opportunity to stretch.  He makes sure the seat is adjustable and is kept in good order.  As a result, he is generally used to it.  He finds, however, if he sits in different chairs or seats, they are usually uncomfortable, and it takes time to get used to them.

88      The amount of work the plaintiff currently does is variable, averaging two or three days a week.  He works whenever work is available, but if he works more than three days in a row, it becomes very uncomfortable. 

89      In cross examination, the plaintiff explained that, on average, he now works two or three days for eight hours.  He starts work at 7.00 am and finishes at 3.30 pm.  He has to work a six-hour minimum job.  On average, he works three blocks of eight hours.  He loves to work, wants to work and tries to do so. 

90      The plaintiff prefers working two or three days per week mainly, as that is what he can handle.  However, after three or four days’ work, he gets enormous pain.  Working a block of days gives him a break.  If he works continuously, he thinks he “is going to get sick very soon”. 

91      In re examination, the plaintiff confirmed that his invoice book showed he had done twenty five jobs from 24 July 2012 to date, earning about $850 on average a day, less expenses, including petrol. 

92      Generally, the plaintiff does as much as he can.  He mows the lawn, does some housework and works in the garden.  Such activities usually cause pain, but he puts up with it.

93      The plaintiff especially tries to do these things on good days.  However, on a really bad day he cannot do anything, but fortunately that is not all that often.

94      On those bad days, the plaintiff would have to refuse work if it was available.  Most days are not bad days; the pain is at a low level.  His back is uncomfortable and he has a burning feeling in his spine but he is able to do things until he knows when to stop.

95      The plaintiff is very conscious about what he does and he is always looking for ways to keep the strain off his back.  There are positives:  he continues to work and can continue to do things to the level he has described.

96      In cross examination, the plaintiff agreed he does things.  He does anything that he can when he feels better.  He appreciates when the days are better and he tries to get as much done as he can.  He loves gardening.  He wants to do everything he can, but saying that, some days he cannot do anything because he is totally disabled.

97      The plaintiff agreed that he is able to stand for one to two hours and then he experiences pain.

98      The plaintiff currently sleeps okay but he is sometimes woken by pain.  Sometimes it is really hard when he gets really bad pains, but he is mostly okay.  It is not so good in winter when the weather is cold.

99      The plaintiff generally takes Panadol three or four days a week.  He does not like taking it because it causes him heartburn.  He uses herbal oils, which he rubs on his back, as a preferred medication.  A couple of days a week he has to take Tramal when the pain is more severe. 

100     For instance, these days it is getting hard to mow the lawns, and that usually causes the plaintiff to develop sufficient pain to take Tramal.  He finds standing for long periods on hard surfaces is a common trigger for pain, and he tries to prevent it.  When washing the dishes, he uses a rubber mat on the tiled floor, and that helps to prevent a flare up of pain.

101     In cross examination, the plaintiff confirmed he is still taking Tramal but sometimes he prefers not to take it because he gets heartburn, but as he has pain he has no other option but to take it.

102     In his recent affidavit sworn 24 October 2012, the plaintiff deposed he takes medication frequently for pain.

103     In examination in chief, the plaintiff confirmed he presently takes herbal remedies, as well as Panamax, some Panadeine, and he uses Deep Heat. 

104     A number of photographs were produced by the plaintiff of his exercise machinery and various aids.  The plaintiff uses an exercise machine, a massager, and TENS machine which he uses six times a month.  He also uses a walking stick and crutches, but does not use them very often, using them only when he gets really disabled by pain. 

105     The plaintiff deposed that when he goes out, he tries not to show he has a problem, and he does not like to show weakness.  However, he recently came across a photograph on his sister’s Facebook site from a family gathering which showed him bending over with some pain and guarding himself by having one hand on his leg.

106     In cross examination however, the plaintiff said that in the photograph at the social gathering he was simply shown bending over to pick up something.

107     The plaintiff deposed that on one occasion in 2006 or 2007 when he went on holidays to Fraser Island, driving on bumpy roads in a four-wheel drive made his back so bad he ended up using a wheelchair.  However, he is now aware and cautious enough to avoid activities which bring him to that state.

108     The plaintiff identified a photograph of himself in a wheelchair on that holiday, after having gone four-wheel driving.  He agreed he did not tell any doctors about his problems on that holiday.  He simply took painkillers at that time. 

109     The plaintiff confirmed he was shown in a wheelchair because of his back pain.  He could not walk, so he could not work.  When he had back problems he had leg problems, so he could not walk.

110     The plaintiff continues to have problems which affect his work, and he has had to adjust his work to cater for those.  He has not been able to work in a full time position as he did prior to the incident.  He has problems with domestic activities and he always has to be cautious.

111     The plaintiff believes this situation all began with the injury in 2000, as he had no prior problems.

Medical Evidence

112     The Northern Hospital report set out that the plaintiff attended on the said date, having been conveyed to the Hospital by ambulance.  It was noted the plaintiff was at work and lifting a bobbin when he had an acute onset of severe lumbar pain.  It was noted the plaintiff was unable to move due to the pain, and an ambulance was called.

113     The plaintiff’s pain was central, with no radiation down the legs.  There was no weakness in the legs or paraesthesia.

114     On examination, the plaintiff was reluctant to move due to pain.  His back had no focal tenderness, deformity or swelling.  The tone, power and sensation were normal in his legs.  There was a normal x‑ray.  The plaintiff was given Panadeine Forte, Indocid, Pethidine and Maxolon, and the pain settled.  He was discharged for review by his local doctor, with the possibility of physiotherapy if necessary.

115     On 7 February 2008, the plaintiff attended Hospital Emergency with lower back pain, with symptoms which had been exacerbated since 18 December 2007.  It was noted that in December 2008 he had apparently had a CT scan which showed a mild disc prolapse at L4‑5 and mild canal stenosis at L5‑S1.  He said the pain started nine years previously when he had a lifting injury.  For the last six weeks he had been taking Tramadol, some Diazepam and Celebrex. 

116     On examination, there was normal power.  The L5 sensation on the right was decreased to pinprick.  There was normal peri anal sensation and normal reflexes.  The plaintiff was advised to continue with his medication and have physiotherapy as an outpatient.  He attended for this treatment on one occasion.

117     Mr Kiellerup, orthopaedic surgeon, saw the plaintiff on referral from Dr Pathak in March 2000.  He noted the plaintiff had a sudden onset of lower back pain when lifting a bobbin on the said date. 

118     The plaintiff told him of the attendance at the Hospital and subsequent treatment and that he spent four days lying on the floor at home because he could not move or get up.  Mr Kiellerup noted that, fortunately, the plaintiff made a good recovery from this rather desperate situation.

119     Mr Kiellerup reported that the plaintiff was much improved and told him he was back to eighty per cent of his normal capacity and was working four hours a day on light duties.  He noted the plaintiff had no history of sciatica but did have some pain in the lower back. 

120     Examination of the plaintiff’s back and lower limbs was essentially normal, and in particular his reflexes and plantar responses were normal.  Mr Kiellerup noted the February CT scan showed a broad L4‑5 disc bulge with no impingement on the neural structures.

121     Mr Kiellerup advised that he had reassured the plaintiff he had done extremely well following the problem.  He thought the plaintiff would continue to improve with the assistance of physiotherapy and a light exercise regime.  He noted the plaintiff was very motivated to return to his previous level of function, and he thought that it was reasonable that the plaintiff gradually return to work as he felt comfortable.  He arranged a review in a further six weeks.

122     Dr Kallab from Mediq Broadmeadows reported in February 2009 in Dr Towie’s absence.  He noted the plaintiff sustained a back injury in 2000 in the course of working.  He improved and returned to work, then had other episodes of back pain twice in 2004 and 2007.

123     Dr Kallab made a diagnosis of disc disease at L5‑S1 and L4‑5 with canal stenosis causing back pain.  He noted the injury occurred after heaving lifting, then was aggravated because of repetitive movement and bending 

124     Dr Kallab thought the plaintiff could work with modified duties with no bending or heavy lifting.  He considered in future the plaintiff would go in the course of pain attacks from time to time with a variety of duration, and he might reach the point of requiring surgery.  He thought the plaintiff was still in pain but better than earlier.

Medico Legal

125     The plaintiff was examined on behalf of Wyatt Gallagher Bassett by Ms McKenzie, orthopaedic surgeon, in September 2004.

126     The plaintiff told her about his employment with Marsden, car parts manufacturers, as a machine operator.  In that job, the plaintiff filled baskets with components and used a crane to lift the baskets, which weighed between 100 and 125 kilograms, into a tank.  There was no specific accident or injury, but a few months prior to June 2004, the plaintiff experienced short-lived episodes of back pain, but not to a level at which he sought medical advice.  After a shift on 28 June 2004, his pain became more severe when he attempted to get himself off the bed at home.

127     The plaintiff was put off work and started on medication, and after a gradual improvement on 20 September 2004, he returned to full time work on light duties.  In addition, six months earlier he had begun experiencing upper back pain.

128     On examination, the plaintiff complained of right sided back pain at the medial border of about the middle third of the infraspinatus portion of the scapula, and midline back pain at the level of the iliac crest.  Sitting for about half an hour and shifting between sitting and standing, the pain could be quite sharp.

129     In terms of past history, the plaintiff told Ms McKenzie about six years ago, when he was employed with Leading Synthetics, he developed low back pain which kept him off work for about two months, during which time there was treatment with physiotherapy and an exercise program, and regular swimming.  The pain completely resolved, and there had been no further problems until 2004.

130     On examination, back movements were from twenty degrees of extension to seventy degrees of flexion.  Lateral flexion was bilaterally to thirty degrees, as was rotation.  Straight leg raising was normal.

131     Ms McKenzie noted the plaintiff first experienced low back pain about six years earlier.  It resolved in response to standard conservative care, and there were no further problems until a few months ago, when, in the absence of an identifiable accident, he began experiencing intermittent low grade back pain.

132     Ms McKenzie’s provisional diagnosis was that of L4‑5 infra-disc damage.  She thought the employment in June 2004 was a factor in the aggravation of the plaintiff’s pre existing back condition, and at that stage, the plaintiff probably was not physically capable of undertaking pre-injury employment. 

133     Mr Schofield, orthopaedic surgeon, examined the plaintiff on 16 December 2011.

134     The plaintiff told him of the incident, and Mr Schofield noted the Northern Hospital report.

135     The plaintiff advised his symptoms slowly lessened, but whilst on light duties he was made redundant from the factory.

136     Mr Schofield noted symptoms persisted, so that the plaintiff was not able to resume his love of cricket, but did some swimming and had physiotherapy.  He did some work for various agencies in his trade on a casual basis.

137     Mr Schofield noted a second acute episode of pain in 2004 when the plaintiff was working as a machine operator in a car components company.  He was required to stand for long periods and also lift car components and place them in boxes and move them for delivery, some of which weighed over one hundred kilograms.  There was an acute episode of back pain in June 2004 which radiated from the lumbar spine into the thoracic. 

138     At one stage also the plaintiff fell whilst holding components, causing more pain.  He resigned because he felt he could not cope with that employment.

139     The plaintiff then worked for a bedding company which necessitated lifting heavy beds, which put extra strain on his back.  He worked as a truck driver for a year, but because of back pain being aggravated by the lifting he was unable to work for six months after that injury.

140     The plaintiff then started work for Nestlé as a truck driver in July 2007.  His job involved a lot of lifting and bending, including boxes of food weighing up to fifteen kilograms on a repetitive basis.

141     On 14 January 2008, the plaintiff was doing his normal job of lifting and loading boxes.  He felt that for two months he had pain in his back with the rapid referral of pain down both legs, but more severely into the left calf.  Symptoms were so severe he was unable to work for the next six months.  He then returned to part time light duties in July 2008 doing mainly marketing and light office work.  That job was terminated in February 2009.

142     For the next nine months, the plaintiff was unable to get work, but in December 2009, he became an owner/driver of a tip truck.  The plaintiff had persistent pain, but continued to work doing deliveries about three to four days a week.  That job did not involve any of the stressful physical activities which were previously the cause of his pain.

143     On examination, the plaintiff complained to Mr Schofield of constant lumbar back pain which radiated up the lower thoracic region.  He also had intermittent left leg pain down the back of the leg down to the calf, and occasionally to the foot.

144     On examination, the plaintiff had a lordotic lumbar spine which was tender from L1 to S1.  His range of spinal flexion was about fifty per cent of normal.  Extension was normal, as were other movements.  Straight leg raising was seventy degrees bilaterally, which produced low back pain, but straight leg raising on the left produced more pain than on the right.  There was a reduction of right knee jerk and right ankle jerk compared with the left.

145     Mr Schofield noted a 2004 x‑ray of the lumbar spine reported spondylosis at L4‑5.  A second CT scan in a December 2007 reported a disc herniation at L4‑5 which was slightly asymmetrical and a small disc bulge at the lumbosacral level with retrolisthesis.  The 2008, CT scan reported a central disc protrusion at L4‑5 and a narrowed right L5‑S1 foramen with the irritation of the right L5 nerve root.

146     An MRI in February 2009 reported a central canal disc protrusion at L4‑5 causing mild central canal stenosis.  There was a degenerative lumbosacral disc with a broad based disc bulge causing minimal central canal stenosis. 

147     Mr Schofield arranged for erect functional x‑rays, which showed the most severe degenerative change affected the disc at L4‑5.  He noted there was only minimal disc space between the endplates of L4‑5.  In erect extension there was a measured five millimetre retrolisthesis, and that corrected in flexion.  At L5‑S1, there was less severe narrowing and no retrolisthesis in extension.  At L3‑4, there was a normal disc which was greater than the two levels below.  Even at that level there was mild retrolisthesis in the erect extension view.  The posterior measurements were all greater in the erect inflection view.

148     Having examined the February 2009 MRI scan, Mr Schofield thought it demonstrated degenerative change mainly affecting the lower two lumbar levels.  The compression of the bulging disc was greater on the right than the left at L4‑5, and also a similar finding was at the lumbosacral level.

149     Mr Schofield had available reports from Ms McKenzie, and reports of examinations by Mr Hooper in 2008, Mr Marshall and Mr B Dooley in 2009, and Mr O’Brien in 2010.

150     Mr Schofield thought the plaintiff had chronic degenerative change mainly affecting the L4‑5 disc, but also involving the lumbosacral disc.  He noted both levels were now unstable due to progressive degenerative change, as seen in the erect functional views.  He thought that if an upright MRI scan was obtained, that would more clearly reflect the degree of disability, with the lumbar spine under load showing the instability and a further compression in the erect extension view, as seen in the plain upright x‑rays.  He noted the normal x‑rays from the Hospital.

151     Mr Schofield noted the plaintiff suffered his first injury in 2000.  He thought the plaintiff clearly had disc compression causing the scoliosis, which settled, and the CT scan pointed the injury to the L4‑5 disc.  That recovered.  However, the plaintiff continued to have ongoing pains, probably due to a slow progressive degenerative change, increasing at L4‑5, and less severely at the lumbosacral level.

152     Mr Schofield noted a further aggravation occurred in 2004 causing the plaintiff to cease work for six months.  Other physical tasks, including stacking and delivering in 2007, as well as lifting and bending in 2008, caused more severe back pain, and evidence of a disc prolapse had now been reported at L4‑5.

153     Mr Schofield thought the plaintiff’s condition was stable while doing light work.  In his view, the plaintiff continued to have a significant disability, with current evidence of radiculopathy showing with the change in his reflexes.  He thought the plaintiff needed an up-to-date MRI scan done in the supine position, and then he required an upright scan to be undertaken in Sydney.

154     Mr Schofield diagnosed chronic lumbar degenerative change which had been aggravated by the incidents as described in the reports.  He thought the condition had stabilised, and that the long term prognosis was poor with regard to performing ongoing physical work and leisure activities.  He thought the plaintiff was fit for only light work.

155     Mr Schofield provided a supplementary report in February 2012, having had clarification of the circumstances of the incident injury.  It was his view that the nature of the injury on the said date was typical of a rupture of the posterior annulus of one of the lower lumbar discs, which was always subject to posterior annular stress when lifting from the flexed position into the extended position.

156     Mr Schofield noted the acute pain was so severe the plaintiff required ambulance admission to hospital to relieve the pain.  The plaintiff then did not have referred leg pain, so the disc prolapse was likely to be central within the lumbar spinal canal.  Mr Schofield considered the scoliosis which developed was likely to be a protective mechanism to try to prevent nerve root compression, which eventually did occur. 

157     On the available evidence, Mr Schofield thought the plaintiff never fully recovered from that injury, resulting in weakness of the posterior annulus and increased risk of further recurrence of a prolapse, which did occur according to the history.  Mr Schofield noted the current examination demonstrated the chronic degenerative change affecting particularly the lower two lumbar discs.

158     On 23 October 2012, Mr Schofield wrote to the plaintiff’s solicitors commenting on the reports of the Hospital and also Dr Pathak. 

159     Mr Schofield confirmed the history of the lifting incident and the plaintiff’s attendance at the Hospital.  He noted that was typical of an acute lumbar disc prolapse having occurred whilst lifting a weight under load and attempting to extend his spine from the flexed position.  In Mr Schofield’s view, the acute pain involved a rupture of the posterior annulus, as there was reported evidence of a small sequestration of disc material through the posterior wall into the spinal canal. 

160     Mr Schofield described the annulus as a firm fibre structure with a very adequate blood supply.  When a tearing of the annulus occurs, a haemorrhage will also occur, thus increasing the local compression and irritation of the nerves within the annulus, and as the prolapse proceeds to one or other side it may involve acute leg pain days or weeks later.  Mr Schofield noted that the natural body reaction to that acute pain on one side is to lean away from the prolapse to try and reduce the compression on the descending nerve root.

161     Mr Schofield thought the onset of scoliosis in this case further confirmed his opinion that the plaintiff suffered an acute lumbar disc prolapse on the said date.  The acute inflammatory reaction to the prolapse settled over the subsequent three weeks, allowing the plaintiff to resume restricted duties of a light nature.

162     Mr Schofield noted that the CT scan two days after injury showed no evidence of nerve root entrapment.  He thought it likely that the central disc prolapse eventually became asymmetrical and eventually caused left sciatica.  Furthermore, as a result of the prolapse, Mr Schofield noted the posterior annulus did not heal adequately to prevent further pains occurring in subsequent years.  That had caused desiccation of the involved disc, with the most recent x‑rays demonstrating a loss of disc height, especially in the erect extension view, as well as instability of the disc shown by evidence of retrolisthesis in the erect extension view.

163     Mr Schofield noted the February 2009 MRI confirmed chronic degenerative change at L4‑5 with a persistent central disc protrusion causing mild central canal compromise.  He thought the lumbosacral degenerative disc had also been affected by the repetitive physical work that the plaintiff was required to perform over many years, but that was not acutely compromised at the time of the injury on the said date.

164     In cross examination, Mr Schofield agreed that history was of great importance, particularly when trying to ascertain the relative significance of various events.  He confirmed he had recorded the plaintiff returned to light duties three weeks after the incident and slowly increased his hours.  He understood the plaintiff did not get back to full time normal duties and that his symptoms persisted from that time onwards.  Mr Schofield agreed it would be a matter of some significance if the plaintiff’s symptoms had resolved completely after the 2000 episode.

165     Mr Schofield confirmed he had the plaintiff’s history in 2004 of being required to lift car components and stand for long periods.  He thought that that was moderate physical activity involved in that job.  He thought, in 2004, pain was aggravated by prolonged standing and repetitive lifting. 

166     Mr Schofield confirmed he took the history of the plaintiff working for the bedding company, aggravating his back pain by lifting beds and being unable to work for six months after that.  Mr Schofield confirmed the next job was working as a truck driver for Nestlé and in January 2008, when doing the normal job of lifting and unloading boxes, the plaintiff had pain in his back with a rapid referral down both legs.  Mr Schofield was not sure that the plaintiff described back pain for two months leading up to this date.

167     Mr Schofield understood that the plaintiff never got rid of the pain; he always had a background of pain all the way to 2000. 

168     Mr Schofield agreed the plaintiff did not tell him of the involvement of any leg pain until 2008. 

169     In his first report, Mr Schofield had commented the plaintiff clearly had disc compression causing scoliosis which settled, and the CT scan pointed to injury at L4-5, but recovered, meaning the swelling recovered, but it did not mean the disc recovered or the disc wall recovered.

170     Mr Schofield explained that the disc at L4-5 recovered because the swelling probably went down after the acute swelling occurred after any prolapse.  What was left after that was pathology which was a weakened disc or a ruptured disc wall and some pressure coming from inside the nucleus to the outside because it was not healed properly.

171     When it was put to Mr Schofield that the disc would be affected by what the plaintiff did over time, Mr Schofield explained once a person had lost the stability of the disc, it did not seem to matter whether he or she was working or not.  The disc had been ruptured and fluid had been lost, as had central compression.  It was inevitable that the disc would gradually desiccate whether one was working or not.

172     The plaintiff had lost the stability in the disc in the incident because he had a rupture of the posterior wall causing a prolapse, and it failed to heal.  Therefore, the disc dried up, the weight continued in various stresses and what happened was that the disc ended up not being one vertebra on top of the other, and usually it slid backwards.  So that created a vulnerability that now continues.

173     Mr Schofield confirmed it is still the L4-5 disc that is giving the plaintiff trouble. 

174     Mr Schofield confirmed the CT scan in December 2007 reported a disc herniation or a prolapse at L4-5.  Compared to the 2000 investigation, where there was a minimal disc prolapse reported, in the latter investigation, the prolapse had become bigger.  On the history provided, there was no healing of the minimal disc prolapse.

175     Mr Schofield thought the plaintiff never returned to heavy work.  If that was not the case and there was some healing, it would have been some healing, but most unlikely to be a total healing back to normal.

176     Mr Schofield disagreed that the plaintiff’s subsequent duties could be a complete explanation for his current situation, as the plaintiff had already got a vulnerable back doing physical work.  He was at risk every time he worked because of the original condition.

177     When asked about the change in pathology at L5-S1 since 2000, Mr Schofield agreed there was pathology at that level but it was certainly not anything like the pathology at L4-5. 

178     In re-examination, Mr Schofield confirmed that if there had been a subsiding of symptoms to an extent where they were at a low level, the discs still remained vulnerable to further injury after initial injury of the type suffered in the incident.

179     It was admitted the plaintiff was examined by surgeon, Mr Peter Battlay, on 30 May 2008.

The Defendant’s Evidence

180     Dr Pathak examined the plaintiff on 8 February 2000 and certified him unfit for work for a week due to low back injury/disc.  On 14 February 2000, Dr Pathak certified the plaintiff unfit for any work for a week in relation to a disc prolapse at L4‑5. 

181     On examination on 21 February 2000, Dr Pathak certified the plaintiff fit for modified duties after 27 February 2000 with no bending or repeated lifting, and working two to three-hour days.

182     Dr Deposito, following examination of the plaintiff on 3 March 2000, certified him unfit for any work on 2 March 2000 for a day.  He noted the plaintiff was on light duties for a back problem certified by another doctor.

183     Following examination on 10 March 2000, Dr Pathak certified the plaintiff fit for modified duties from 8 to 20 March 2000, with restrictions as before for three-hour days until 13 March 2000, with eight hourly shifts from 14 March 2000.

184     Following examination on 20 March 2000, Dr Pathak certified the plaintiff fit for modified duties from 21 March to 3 April 2000 as before, for four hours a day.  That certification for modified duties following examination on 4 April 2000 was increased to six hours a day, five days a week.

185     Dr Pathak reported on 18 April 2000.  The plaintiff told him that on the said date, he was lifting a fifteen-kilogram bobbin when he sustained a sudden onset of low back pain.  After the plaintiff was discharged from Hospital he spent four days lying on the floor at home as he could not move or get up.

186     The plaintiff attended on 8 February 2000 with “a list [sic] to the right”.  There was an aggravation of back pain when sitting or walking for more than ten minutes.  On examination, there was low back pain, more centre to the left, and no referring pain.  Dr Pathak set out the results of the CT scan of the lumbar spine undertaken on 9 February 2000.

187     Dr Pathak noted the plaintiff was prescribed NSAID medication and analgesics, physiotherapy, and a light exercise regime of swimming and walking.

188     Dr Pathak noted the plaintiff was put on light duties from 28 February 2000 initially for three hours a day, then four hours daily, in the pack and pump area, with restrictions to change posture regularly, avoid repetitive or prolonged bending and sitting, and no lifting.  At the time of that report, the plaintiff was working six hours per day on light duties.

189     Dr Pathak noted the plaintiff was very motivated to return to his previous level of function, and it was Dr Pathak’s opinion it was reasonable he would gradually return to work as he felt comfortable.

190     Dr Pathak thought the injury was directly related to the plaintiff’s employment, which was a significant contributing factor.  He thought it would not be long before the plaintiff returned to pre injury duties, and he did not think there was any permanent impairment.

191     Dr Towie’s notes included attendances on 28 June and 18 August 2004, 21 May and 17 December 2007, and 16 January and 26 February 2009.

192     The 26 February 2009 entry set out that the plaintiff had a back injury in 2000 and was off work for three months on WorkCover, and felt better, and worked in different places, but still suffering from back pain he had after lifting.  After that, in about 2004, his back started to become painful again from repetitive bending and standing for a long time, and he went back on WorkCover. 

193     The entry also referred to another injury in 2007 when working with Nestlé.  Again, the plaintiff had back pain and could not work for a few months, and was under WorkCover. 

194     As of 26 February 2009, the plaintiff’s back was still painful.  He was on painkillers.  The pain radiated to the left leg below the knee.  WorkCover was no longer paying medical expenses.

195     Notes from Dr Tunaley’s practice set out attendances on 14 August 2002 and 29 July 2004.  On the later date, Dr Towie noted there had been pain in the back for six months which comes and goes.

196     Mr Keng wrote to Dr Garg in July 2009, thanking him for referring the plaintiff earlier that year.

197     Mr Keng advised that when he first saw the plaintiff, he complained of severe pain in the region of his lumbar spine and restriction of mobility.  He gave a history of suffering a fall at work on 14 January 2009, which caused him pain in the lumbar spine.

198     Mr Keng noted examination of the lumbosacral spine revealed marked tenderness throughout and mobility was restricted.  Flexion was restricted to half the normal range, and extension was painful.  Both right and left lateral bendings were free and rotations were normal.

199     Bilateral straight leg raising was to seventy degrees.  Both knee jerks and ankle jerks were brisk and normal and plantars were downgoing.

200     Mr Keng advised the plaintiff to have an MRI scan of his lumbar spine.  He thought the plaintiff suffered from multi-level facet joint and intervertebral disc degeneration of the lumbar spine.

201     Mr Keng advised he was of the view that the fall the plaintiff suffered at work would have aggravated his pre-existing condition and he felt the plaintiff would benefit from physiotherapy and gentle exercises to help with mobility.

Medico Legal Examinations

202     Mr Jonathan Hooper, orthopaedic surgeon, examined the plaintiff at the request of Gallagher Bassett Services in March 2008 in relation to a claim against Vedior.

203     The plaintiff told Mr Hooper that approximately eight years earlier he injured his back at work and was off work then for three months.  His back improved and he continued working through until 2000 before he took a redundancy.

204     The plaintiff further advised he continued working in various jobs without any major problems, and started working with Vedior about six months prior to hurting his back again in January 2008.  At that time, the plaintiff had no injury, but his backache came on whilst he was working.  He reported his pain was very severe and he could not work or walk.  He was off work for nearly twelve weeks, but said he hoped to return to work in the very near future.  He then said his back pain was improving.

205     On examination, the only problem was backache, with the plaintiff reporting having last suffered leg pain in January 2008.

206     On examination, the plaintiff’s spinal movements were limited.  He moved to seventy degrees in forward flexion but extension, lateral flexion and rotation were all quite normal, and the plaintiff was flexible in those movements.  Bilateral straight leg raising was to seventy degrees.

207     Mr Hooper noted the December 2007 CT scan showed bulging at L4‑5 and L5‑S1.

208     Mr Hooper thought the plaintiff had evidence of degenerative disease and back disease which was compatible with his age and working history.  He noted that the plaintiff had developed an episode of back pain which was improving.  He was optimistic that the plaintiff’s symptoms would settle to a level that he would be able to cope with and he could get back to light duties.

209     Mr Hooper thought the contributing factor to the plaintiff’s condition was the underlying degenerative change that had been aggravated by work in January 2008, and that the plaintiff’s condition was an aggravation of the constitutional troubles he had had in his back.  The work component had not resolved, but was resolving.

210     Mr Hooper thought the plaintiff was capable of returning to light duties but not work involving bending or lifting, and he should be able to get back to work as a truck driver.  Mr Hooper considered the plaintiff had some evidence of disc bulging, but his symptoms were settling, and he should be able to get back to light work in the not too distant future.

211     Mr John O’Brien, orthopaedic surgeon, examined the plaintiff in February 2010 at the request of his solicitors in relation to the Vedior injury.

212     The plaintiff told Mr O’Brien about his delivery duties at Nestlé and feeling a massive pain in his lower back which was associated with pain affecting the whole leg.  The plaintiff described constant low back pain fluctuating in severity from two to six out of ten.

213     In terms of past history, the plaintiff stated that in about 2000, he injured his back when working in a textile factory, lifting a bobbin.  The plaintiff described an acute episode of back pain which resulted in him being off work for about three months.  Following that, the pain resolved, and he returned to full activity, although he did indicate that following that episode of pain, he was aware of very occasional mild back pain which did not cause any incapacity until the onset of significant pain in about December 2007.

214     On examination, the lumbar spine was straight.  Flexion was to seventy degrees, with the plaintiff describing some mild pain as he extended from the flexed position.  Extension was to twenty degrees, accompanied by the complaint of back pain.  Lateral flexion was also to twenty degrees, with the plaintiff describing very mild pain to palpation at the lumbosacral junction.

215     Passive leg raising was to sixty degrees bilaterally, but the plaintiff was in fact capable of active straight leg raising, there being no evidence of any abnormal neurology in the lower limbs.

216     Mr O’Brien noted the 2009 MRI scan of the lumbar spine was reported as demonstrating multi-level facet joint and intervertebral disc degeneration at L4‑5 and L5‑S1 levels without any evidence of nerve root compromise.

217     Mr O’Brien noted the plaintiff now described a work related incident in 2000 which apparently precipitated severe incapacitating low back pain, requiring three months off work. 

218     The plaintiff reported that following that, he had no significant low back pain until December 2007.  Mr O’Brien noted “indeed” the plaintiff in fact remained a little vague in terms of the date of the onset of the current problem.  Nevertheless, it appeared to Mr O’Brien that it had been associated with severe and incapacitating back and leg pain.  It appeared the leg pain had resolved but the plaintiff continued to describe chronic low back pain.

219     Mr O’Brien noted physical signs now were indeed mild and subjective, indicating some restriction of spinal movement, and there was certainly no evidence of any ongoing nerve root compromise.

220     Mr O’Brien noted investigations indicated disc abnormality in the lower lumbar spine, without evidence of frank disc herniation or nerve root compromise.  He thought the history would suggest the plaintiff did experience an acute episode of discogenic pain which had now become chronic with residual mild symptoms.  Mr O’Brien considered employment was a contributing factor.

221     Mr O’Brien thought the condition was stable, and there was no indication for any further investigations or active treatment.

222     Mr O’Brien was guarded in relation to the plaintiff’s prognosis.  He noted the current symptoms appeared mild, although one could not rule out the possibility of an acute episode of back pain.  He thought the plaintiff was mildly disabled due to residual chronic back pain, and not capable of unrestricted employment, but certainly not totally incapacitated.

223     Mr O’Brien thought the plaintiff could do work excluding any heavy physical tasks such as lifting or bending, allowing a reasonable change in position.  He noted the plaintiff did indicate he was currently driving a truck which did not require any manual loading or unloading, and that would seem appropriate.  He also noted that currently the plaintiff appeared to have some mild restriction of his general, social, domestic and recreational activities.  Given the recent clinical course, it appeared to Mr O’Brien it was likely to be a permanent situation.

224     Mr O’Brien provided a supplementary report in March 2010.  He confirmed he considered the plaintiff suffered a disc injury producing severe discogenic pain during the course of his work in December 2007.

225     Mr O’Brien noted x‑rays did demonstrate pre-existing degenerative change in keeping with lumbar spondylosis and that was obviously asymptomatic.  He noted the Vedior incident precipitated acute discogenic pain which had continued.  He personally would not describe employment as being an accelerator of a pre-existing degeneration, which would suggest that the degeneration would always, at some point in time, become symptomatic.  He in fact considered the plaintiff’s employment either aggravated pre-existing degenerative change or, more precisely, his employment with Vedior was a significant contributing factor to what was and is discogenic back pain.

Claim Documents

226     In a Claim Form signed on 18 February 2000, the plaintiff claimed an injury to his back on 5 February 2000 transferring packages from one trolley to another.

227     In a Claim Form signed on 24 January 2008, the plaintiff claimed an injury described as “gradual pains in back suffered on 14 January by manually lifting boxes, sitting for long periods of time”.

Claim History

228     Geraldine Kearney, solicitor for the defendant, swore an affidavit on 24 October 2010 setting out the plaintiff’s previous claims history.

229     The plaintiff lodged a Claim for Compensation against the employer for an injury to his back sustained on 5 February 2000 which was allocated claim number 04 99 0120333.  This is the subject of the present s134AB application.

230     The plaintiff received weekly payments for eight weeks pursuant to that claim in the period from 21 February to 14 April 2000.  He had not applied for reinstatement of payments.

231     The plaintiff’s weekly payments of compensation in relation to that claim ceased on or about 17 April 2000 upon the plaintiff returning to full time work.

232     The plaintiff has not claimed medical expenses under s90 pursuant to that claim since 22 June 2000.

233     The plaintiff lodged a Claim for Compensation against APV Automotive Components Pty Ltd for an injury to his shoulder and upper back sustained on 28 June 2004 which was allocated claim number 21 04 0017066.

234     Liability for that claim was rejected.

235     The plaintiff lodged a Claim for Compensation against Randstad Pty Ltd for an injury to his lower back sustained on 14 January 2008 which was allocated claim number 21 07 0041552.

236     The plaintiff received sixty six weeks of weekly payments pursuant to that claim between the period 28 January 2008 to 17 August 2009, and continues to claim and receive reasonable medical and like expenses under that claim number.

237     The plaintiff lodged a Claim for Impairment Benefits pursuant to s98C in relation to that claim number and accepted a payment of nearly $10,000 for a five per cent whole person impairment on or about 17 September 2009.

238     The Claim Form signed by the plaintiff on 24 January 2008 set out disc injuries suffered on 14 January 2008, with the plaintiff first having noticed the injury on 18 December 2007.  He described gradual pains in the back, painful sitting and lifting.  The plaintiff described his injury being caused by manually lifting boxes and sitting for long periods of time.

239     In terms of any previous personal injury claim for a similar condition, the plaintiff said “yes”, describing a WorkCover claim with Leading Synthetics eight to nine years ago.  That injury involved a slipped disc, following which he underwent swimming, physiotherapy, painkillers and two months off work. 

The 2004 Statement

240     The plaintiff made a statement to Maurice Kerrigan Investigators on 21 September 2004 setting out details of his work duties at Marsden. 

241     The plaintiff stated that when he was employed with Leading Synthetics about five years ago, he hurt his lower back when he was trying to lift something weighing about twelve kilograms.  He was off work for about two or three months, and then returned to full normal duties.  He noted he had lodged a WorkCover claim for that injury at that time.

242     The plaintiff described having started to feel some pain in February 2004 in his lower back after placing metal components into a basket, and then using a crane to lift and lower it into a big tank with water and chemicals, and then taking it out of the basket at the end of the cycle and letting it drain, and then lowering the basket to the ground.

243     The plaintiff continued normal duties, but on 28 June 2004 was sick and could not work, having had increasing back pain over the previous week.  On 28 June 2004, he rang work and advised of his back problem, but did not think he was understood.  He told work he had previously injured his back so he did not want to make his injury worse, and wanted to take that time off work.  He was told that was all right.

244     About seven months before the statement, the crane in the washing department fell on the plaintiff’s right shoulder, but he was not injured.  The plaintiff advised he was okay.  He started experiencing the back pain after that incident.  The incident was recorded on the computer.  The plaintiff did not report his back was injured after that incident because he did not want to complain.

The 2004 Claim Form

245     In his Claim Form relating to the Marsden injury signed by the plaintiff on 23 August 2004, he set out suffering pain in the right shoulder and upper back gradually over time, bending and lifting while doing normal work duties.  He described a lower back injury six years ago, went to hospital and required short term treatment. 

Rehabilitation

246     Workplace Initiatives carried out initial assessment of the plaintiff on 21 February 2000 with a worksite visit at the employer’s premises.

247     The author of the worksite assessment report, Tom Bradford, occupational therapist, noted the plaintiff suffered an injury on the said date, with severe pain initially, but improving with physiotherapy.  When reviewed by Dr Pathak on 21 February 2000, the plaintiff was allowed to go back to work a week later, working three hours per day with duties that did not involve bending or lifting.

248     Mr Bradford recommended that in the initial stages of the return to work the plaintiff change postures regularly.

249     Mr Bradford noted that prior to his injury, the plaintiff was employed as an operator working the equivalent of fifty six hours a week.  Which job was performed varied from day to day depending on demand.  Duties included working in the winding area on the ground floor, involved the plaintiff threading; putting spools on; carrying spools of yarn; moving a trolley; lifting a threading device; lifting completed spools of yarn or working in the spinning area on the second floor; cleaning dye packs; starting the pump and threading.

250     The plaintiff reported that the second area was not always busy and that there may be times when there was not much to do and there were places to sit down.

251     During the site visit, the plaintiff identified cleaning bolts, painting bolts and scooping sand as being light duties.

252     Mr Bradford recommended the plaintiff make a graduated return to full duties, initially starting three hours a day, working in the pack and pump area, spinning area, and not in the winding area.  It was recommended the plaintiff was coping with the increased demands in the spinning area before moving into winding. 

253     In a progress report of 15 March 2000, Mr Bradford noted that when he spoke by phone to Dr Pathak, Dr Pathak stated the plaintiff, if going well on review on 20 March 2000, could increase to eight hours a day.

254     Mr Bradford noted that when the plaintiff had a full medical clearance he would be working in the spinning area – a different spinning area than what was reviewed in the initial report.

255     Mr Bradford noted that for the duration of his current certificate, the plaintiff was to work light duties either in the pack and pump area or spinning, with changing posture and no bending or lifting.

256     In a progress report of 29 March 2000, Mr Bradford noted the plaintiff was still experiencing some discomfort and reduced his hours to four hours a day until 3 April 2000.  The plaintiff was then working in the pump and pack area and occasionally worked in the spinning area for up to thirty minutes if required. 

257     A return to work plan with reviews by Dr Pathak involved weeks 1 and 2, starting on 3 April 2000 for six hours a day, with four hours in the pack and pump area in the morning and two hours in the spinning area in the afternoon.  In weeks 3 and 4, starting 17 April 2000, the plaintiff was to work eight hours a day: four in spinning and four in the pack and pump area.  From week 5, on 1 May 2000, he was to work eight hours per day in spinning.

258     Mr Bradford noted the plaintiff’s pre injury hours were fifty six per week and he recommended that the plaintiff have a full clearance from Dr Pathak before doing more than forty hours.

259     There was a further progress report dated 5 May 2000 in which Mr Bradford noted the plaintiff reported he was keen to increase his hours of work.  However, the plaintiff understood that he should ease into the increased hours to avoid aggravation. 

260     Mr Bradford noted that from 1 May 2000, the plan involved the plaintiff working eight hours a day with six hours in spinning, and from 8 May 2000, eight hours a day for five days with eight hours in spinning.  He noted once the plaintiff had shown a capacity for eight hours per day in spinning, he may be able to commence his pre-injury hours following medical approval.

261     At that stage, it was anticipated the plaintiff may be able to return to his pre-injury duties and hours within three to four weeks.

262     In a closure report dated 23 May 2000, Mr Bradford advised HIH that the plaintiff indicated he was coping well on his pre injury duties and hours.  He noted the plaintiff was given a full clearance for full duties and hours on 4 May. 

263     At a meeting with the defendant on 11 May 2000, Mr Bradford reported it was established the plaintiff would gradually increase from forty to fifty six hours a week in order to minimise the risk of aggravation.  On 25 May 2000, contact was made with the plaintiff.  It was established that he was coping well on fifty six hours a week, and he stated he had no problems and was continuing with the self managed exercise program.  Mr Bradford concluded the plaintiff was coping well in his pre injury duties and his file would be closed.

Other Documents

264     In a Health Statement completed by the plaintiff on 14 August 2002 he answered “No” to whether he had a slipped disc, sciatica, back injury or chronic pain, any health problems that could affect his ability to perform his job, any work-related injury.  He specifically stated he had no previous injury.

265     In a pre-placement medical for the Marsden job carried out at the Northern Industrial Clinic on 14 August 2002, it was noted that the plaintiff’s back and straight leg raising was normal.

266     In a Hepatitis B vaccination certificate from the Northern Industrial Clinic on 15 July 2005, the plaintiff answered “No” to any medical or surgical condition in the past, or taking any medication at that time.

Overview

267     I accept that the plaintiff suffered a compensable injury to his lower back in the incident.  On the very limited contemporaneous medical evidence available, that injury was described by his treating general practitioner, Dr Pathak, on certificates in early 2000 as “low back injury disc and disc prolapse at L4-5”.

268     In March 2000, Mr Kiellerup noted the February CT scan showed a broad L4‑5 disc bulge with no impingement on the neural structures, but otherwise made no diagnosis.

269     There was no suggestion at that time that the injury was not organically based.

270     There was no medico-legal examination arranged in relation to the incident injury until 2011.

271     In the meantime, the plaintiff suffered further injury to his back in 2004 and 2007-2008.

272     A Claim for Compensation lodged in relation to the incident was accepted and weekly payments and medical expenses were paid. 

273     This acceptance of liability may not be binding, but as Ashley JA said in Ansett Australia Ltd v Taylor [2006] VSCA 171, such an admission should ordinarily be regarded as very significant –

“… albeit not conclusive evidence because a defendant in a particular case might be able to satisfactorily explain its conduct.”

274     The issue for determination is whether any impairment relating to the incident injury is “serious”.  That assessment must be made at the date of hearing; therefore I propose to address the issue of seriousness first.

Credit

275     As Maxwell P said in Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69 at paragraph 12:

“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”

276     Counsel for the defendant attacked the plaintiff’s credit in relation to a number of matters.  A challenge was made to the plaintiff’s evidence of the onset of leg pain at the time of the incident when there was no complaint noted at the Hospital or by any treater in 2000, and a history was given by the plaintiff to Mr O’Brien that such pain first came on in 2008. 

277     Further reliance was placed on the plaintiff’s denial of a previous back problem on application for employment in 2002 and a Hepatitis B document in 2005.

278     Taking these and a number of other circumstances into account, it was submitted I ought not also accept the plaintiff’s evidence of the nature of his back condition after the incident.  The question was posed, if the plaintiff admitted he was prepared to lie in the past, why should I accept he is not lying now?

279     Counsel for the plaintiff submitted the plaintiff was not a great historian but he was honest.  The existence or not of leg pain at an early stage was not relevant to the final issue in this case.  Further, it was submitted it was unfair to say that the plaintiff heightened the importance of each injury to suit the particular claim. 

280     Reliance was placed on the plaintiff’s insistence he had seen Dr Towie more frequently in 2004 than the doctor’s notes indicated, as other documents later confirmed.  Also, the vocational report did provide the plaintiff with some support as to his evidence of the lighter nature of his duties on his return to work.  Whilst the plaintiff had not complained to doctors of having to use a wheelchair on his Queensland holiday, he had reported the need to use crutches to Dr Garg in 2008 and reported the need to use a walking stick the following year. 

281     Counsel for the plaintiff submitted that in early years after the incident, the plaintiff could have said that his condition had resolved when one compared the extreme nature of his condition, doubled up in pain in the Hospital after the incident, to how he later felt. 

282     There was no surveillance or other evidence challenging the plaintiff’s account of his present pain and restrictions. No medical examiner found inconsistencies on examination or commented that the plaintiff was exaggerating his condition.

283     Taking into account all these factors, I have some concerns about the plaintiff’s recollection of matters in the past and what I accept at times was a willingness to put more emphasis on the particular incident injury for which he was being examined.  As I found the plaintiff to be unreliable historian, I have reservations about accepting his evidence as to the course of his back condition after 2000, and wherever possible, seek objective evidence in relation thereto. 

Consequences

284     Whilst it is not in dispute that the plaintiff has some ongoing back pain, counsel for the defendant submitted that when one examined the relevant factors set out by the Court of Appeal in Haden Engineering Pty Ltd v McKinnon (supra), the test of seriousness was not satisfied. 

285     Counsel for the defendant submitted the plaintiff was not vigorously cross-examined about any of these matters, because his own description of consequences did not meet the test of “serious”.  It was disputed the plaintiff was a stoic, and counsel submitted the fact the plaintiff had generally got on with things was because he did not really have significant problems. 

286     Whilst the plaintiff’s present experience of pain is not constant with a good day/bad day scenario, and there appears to have been some improvement therein from the time since he swore his first affidavit, at present, I accept there are never sustained periods during which he is free of back pain.

287     I accept the plaintiff’s present treatment is limited to seeing his general practitioner from time to time and there has been limited specialist referral, firstly, to Mr Kiellerup, who saw the plaintiff once in 2000, and then thought the plaintiff was doing extremely well and thought it reasonable that he gradually returned to work as he felt comfortable. 

288     More recently, the plaintiff was referred to Mr Keng in 2009 following what appears to have been problems relating to the 2007-2008 incident.  Mr Keng suggested physiotherapy and gentle exercise to help with mobility.

289     The plaintiff has not had chiropractic treatment since 2004 and does not appear to have had any physiotherapy since the year of the incident. 

290     In addition to Panadol three to four times a week, the plaintiff takes more significant painkilling medication in the form of Tramal when his pain is worse but tries not to do so when driving at work.

291     Because of pain and restricted movement in terms of bending and lifting and standing, the plaintiff has problems with basic tasks, such as doing the dishes.  He has difficulty standing for prolonged periods, as was apparent when he gave evidence.  He avoids running.  On good days he tries various activities, but on bad days he cannot do anything, as he is totally disabled.

292     The plaintiff has a lesser problem with sleeping than when he swore his first affidavit, but he still is sometimes woken by pain and sometimes it is hard when he really gets bad pains but mostly his sleep is ok.

293     The plaintiff experienced extreme back pain when travelling over bumpy roads at Fraser Island, such that he required a wheelchair thereafter for some days. 

294     The plaintiff has problems with prolonged sitting on unfamiliar, uncomfortable chairs.  He is able to adjust the seat on his work truck so he is relatively comfortable, but even then he has problems sitting for extended periods. 

295     Prior to the incident, the plaintiff was able to work for three years without any restriction as a process worker and machine operator with the employer.

296     Whilst the plaintiff has retained a capacity for his current level of driving, I accept he could not work on a full time regular basis.

297     The consensus of medical opinion is that the plaintiff does not have a capacity for unrestricted manual or heavy physical work. 

298     When Mr Hooper examined the plaintiff in 2008 in relation to the Vedior injury, he thought the plaintiff was capable of returning to light duties but not work involving bending or lifting.  Mr Hooper considered the plaintiff’s symptoms were settling, and he should be able to get back to light work in the not too distant future.

299     In 2009, Dr Kallab thought the plaintiff could work with modified duties with no bending or heavy lifting. 

300     In 2010, when Mr O’Brien examined the plaintiff in relation to the Vedior injury, he thought the plaintiff could do work excluding any heavy physical tasks such as lifting or bending, allowing a reasonable change in position.  He noted the plaintiff’s current job driving did not require any manual loading or unloading, and that seemed appropriate. 

301     In my view, the plaintiff is capable of doing his present job on a limited basis working three consecutive days then requiring a day off before working again.  Because of the nature of his duties and the fact he is self employed, the plaintiff is able to get in and out of his truck when he needs to on the site.  His duties are largely mechanised and do not involve any bending or lifting. 

302     After a day at work, the plaintiff is stiff and sore and requires the use of a TENS machine, and he applies Deep Heat to his back.

303     I am satisfied that the plaintiff has a serious injury in terms of his pain and restriction and the resulting inference with his work activities.

304     I must then determine whether such consequences relate to the incident injury.

305     Counsel for the plaintiff submitted that if the initial injury in the incident was a significant contributing factor to the ultimate consequences, then the plaintiff is entitled to have the Court look at the entirety of those consequences because the initial injury is a contributing factor to all of them.  This submission seems to take into account the matters discussed by Ashley JA in Grech v Orica Australia Pty Ltd& Anor (2006) 14 VR 602 at paragraph 58.

306     Counsel for the plaintiff, in arguing that an original vulnerability manifesting itself some time later in a serious injury could constitute a serious injury, relied upon the decision of the Court of Appeal in Altona Bus Lines & Anor v Lococo [2002] VSCA 159 (30 September 2002).

307     Buchanan JA, in that case, with whom Chernov JA agreed, held there was a serious injury in respect of an injury suffered in 1995 when the plaintiff slipped and hit his back.  Having been on light duties for seven months, the plaintiff commenced full time work as a bus driver.  He still experienced pain but put up with it in order to remain in his job.

308     In December 1998, the plaintiff rose from his seat on the bus, forgetting to disengage his seatbelt, which resulted in severe lower back pain which gradually worsened.  A CT scan in December 1998 showed mild posterior disc bulging at L4-5 and a MRI scan in 1999 showed further disc involvement.  The plaintiff returned to work on light duties, not resuming bus driving. 

309     The trial judge held the plaintiff was suffering a serious long term impairment of his spine.  The issue was then was whether the plaintiff had established, on balance, that there was a causal connection between the 1995 incident and his current level of impairment.

310     The trial judge decided, if it could be demonstrated that a subsequent injury would not have occurred but for an earlier injury, or that the effects of the subsequent injury were more severe because of the earlier injury, then the subsequent injury or the additional effects thereof are consequences of the original injury and may be taken into account in considering whether the original injury produced a severe long term impairment of the body function.

311     The appeal against this decision was dismissed.

312     The Court of Appeal held that each injury and resulting impairment had to be considered separately following the decision in Lu v Mediterranean Shoes Pty Ltd (2000) 1 VR 511, where the Court held that a number of injuries could not be combined when the seriousness of a plaintiff’s present condition was under consideration.

313     Counsel for the plaintiff in the present case also relied on the recent decision of Judge O’Neill in Scholte v Transport Accident Commission [2012] VCC 1458.

314     Having recited the number of propositions set out by the Court of Appeal in Filipowicz, his Honour concluded that the proper approach was to identify the subject injury and, more importantly, identify the consequences arising from it.  That required an assessment of the plaintiff’s pain, limitation, work capacity and restriction both before and after the subject injury.

315     Judge O’Neill held that the principles established by in Lococo (supra) and R J Gilbertsons Pty Ltd v Skorsis (2000) 12 VR 386 that an injury may have serious consequences notwithstanding the immediate effect upon a person in terms of pain, restriction and effect on working capacity is modest, providing there is clear and cogent medical evidence that the subject injury rendered the person more vulnerable or susceptible to subsequent injury. That susceptibility or vulnerability can be a serious injury itself.

316     I accept, as counsel for the defendant submitted, there may be some tension between Judge O’Neill’s finding and the principles enunciated in Filipowicz, an aggravation case. 

317     It appeared counsel for the plaintiff was arguing that all that had to be asserted and established was a vulnerability and that, of itself, could constitute a serious injury without the plaintiff having to separate the consequences of the incident injury and establish such consequences were serious.

318     I am not persuaded that there can be a lower threshold in establishing seriousness in a case of vulnerability than in an aggravation case where the principles enunciated in Filipowicz apply.

319     However, I do not need to resolve this issue in the present case.  Whether the principles in Filipowicz  apply or whether, in the case of vulnerability, those set out in Lococo and Scholte apply, I am not satisfied the plaintiff had a vulnerability from the incident that has resulted in his present serious injury.

320     I have made that finding having taken into account a multitude of factors, including the limited medical treatment in relation to the incident, the plaintiff’s complaints to doctors in 2000 and thereafter, his description of his condition in other documents at the time and thereafter, and the nature of the plaintiff’s work duties following the incident and how coped with them.

321     I am not satisfied the plaintiff had ongoing problems of any significance save for an initial period after the incident, from which he largely recovered, and there is no cogent medical evidence that the incident injury made him more susceptible to subsequent injury which has resulted in his present condition.

Treatment Post 2000

322     There is limited material detailing treatment the plaintiff received after the incident.

323     The plaintiff saw Dr Pathak during 2000 (last reported attendance April).  He arranged for a CT scan in February 2000 and referred the plaintiff to Mr Kiellerup, orthopaedic surgeon, who appears to have only seen the plaintiff once in March 2000.  Both those practitioners were optimistic as to the plaintiff’s prognosis at that time. 

324     The plaintiff deposed he had physiotherapy in Preston but there is no report available in that regard, nor from any other general practitioner, although the plaintiff deposed he may have also seen another general practitioner in Preston.

325     There is no evidence of any further treatment after 2000 until the 2004 flare up whilst the plaintiff was working at Marsden.  The plaintiff then saw a chiropractor, Mr Seddon, for a couple of sessions.  Treatment at that time then seems to be from Dr Towie, who saw the plaintiff about six times in 2004.  The plaintiff also saw Dr Tunaley in July that year.

326     There is no evidence of any attendances on a general practitioner in 2005.  The plaintiff saw Dr Towie a couple of times in 2007 and once in 2008.  He commenced seeing Dr Garg in January 2008.

Return to Work

327     The nature of the plaintiff’s duties on his return was clearly in dispute.  Whilst it is accepted he returned to full time hours, and he could not recall working fifty six hours per week, the plaintiff maintained he never returned to work involving lifting bobbins and he worked only on the second floor. 

328     Mr Bradford’s reports set out a return to all pre incident duties with a full medical clearance and the plaintiff coping with such duties.

329     Unfortunately, Dr Pathak’s notes do not detail attendances beyond April 2000, at which time he was certifying the plaintiff fit for modified duties six hours per day, five days per week.

330     Whether the plaintiff was lifting bobbins or not on his return to work after the incident, I accept he worked at least forty hours per week until he was made redundant in about mid 2000.

331     The plaintiff made no claim for medical expenses on his incident claim after June 2000.

332     In his 2004 statement relating to the Marsden injury, the plaintiff stated that when he was employed with the employer about five years ago he hurt his lower back when he was trying to lift something weighing about twelve kilograms.  He was off work for about two or three months, and then returned to full normal duties.

333     The plaintiff told Dr Garg, his treater since February 2008, that he had suffered a back injury in 2000 and was on WorkCover for three months and had been doing his usual duties since then. 

334     After six months off work, the plaintiff obtained short term work with Caroma as a factory hand.  He then worked as a night filler with Safeway for a couple of weeks, a job which involved bending and twisting and putting items on the shelves.

335     The plaintiff then commenced work at Marsden – a job which required him to be on his feet for eight to twelve hours a day.  Although he deposed there was no lifting involved, he did suffer a flare up of back pain in 2004, as a result of which he could no longer cope with his duties.

336     The Claim Form relating to the Marsden injury set out the plaintiff suffered injury as a result of continuous bending and lifting whilst doing his normal duties. 

337     Whilst the plaintiff had described a crane falling and hitting him on the right shoulder in his 2004 statement, in cross examination, he denied this was the case.  He could not recall, as was also set out in the statement, that after an incident with a crane he started to have back pain.

338     After a period of driving in his own business, the plaintiff obtained work at Sleepeasy as a truck driver.  In that job he was at times required to lift mattresses, and he continued to experience low back pain.  He left that job because his back was sore.

339     After doing administrative work in his own business for about six months, the plaintiff then obtained work at Vedior in mid 2007 as a truck driver.  He deposed to the light nature of the work but there was again a flare up in late 2007, following which he was off work for six months and from which he never recovered.

340     In cross examination, the plaintiff agreed the Vedior job involved lifting items weighing between ten and fifteen kilograms on a repetitive basis.  Further, he experienced pain when driving and unloading.

341     The plaintiff agreed that following the Vedior injury, he was disabled with severe back pain and also pain affecting the whole of his left leg.  After a return to light office work, the plaintiff then started to drive in his own business in late 2009, and continues to do so. 

The Plaintiff’s Histories

342     Histories given by the plaintiff to various examiners suggest that the plaintiff’s condition had substantially resolved within a few months of the 2000 incident.   

343     In the Health Statement signed by the plaintiff on 14 August 2002 before he started work at Marsden, the plaintiff denied any previous back condition, slipped disc or any problem with doing the job applied for, and explained he did so because he wanted the job.  Further, the plaintiff received a medical clearance at that time for the Marsden job.

344     In his Claim Form relating to the Marsden injury, the plaintiff described six years ago having had an injury to the lower back, went to Hospital and required short term treatment.

345     The plaintiff could not recall telling Ms McKenzie, when she saw him in 2004 in relation to the Marsden injury, that he was off work for two months after the incident, the pain resolved completely and there were no further problems until 2004.  When this history was put to him, the plaintiff explained that he had been to the doctor, skipped work many times, but that 2004 injury was another injury that affected him a lot and he could not go to work and could not do things. 

346     In the Hepatitis B vaccination form, the plaintiff also answered “No” to suffering any medical condition in the past.  In cross examination, he explained he did so because it was easier to answer “No” as his lack of English made it difficult to provide full written details.

347     In 2008, when examined in relation to the Vedior injury, the plaintiff told Mr Hooper that approximately eight years earlier he injured his back at work and was off work then for three months, that his back improved and he continued working through until 2000 before he took a redundancy.

348     The plaintiff further advised Mr Hooper he continued working in various jobs without any major problems, and started working with Vedior about six months prior to hurting his back again in January 2008.  The plaintiff made no mention of any injury whist working at Marsden    

349     The plaintiff agreed that on examination in 2010, he would have given Mr O’Brien the following history if Mr O’Brien had recorded it; namely that the pain resolved after the incident and he returned to full activity and thereafter he was aware of very occasional mild back pain which did not cause any significant incapacity until the significant pain in December 2007. 

350     There was no mention to Mr O’Brien of the Marsden injury.

351     This history was given at a time the plaintiff agreed his English was good. 

352     The plaintiff now maintains that his back problem has been ongoing since the incident – the history he gave Mr Schofield on examination in 2011.

353     Mr Schofield relies to a large extent on the accurate history.

354     I am mindful of what was said by the Court of Appeal in Dordev v Cowan [2006] VSCA 254 in relation to the plaintiff’s credit in this type of case. As Chernov JA said at paragraph 14 of his judgment, a plaintiff’s credibility is relevant not only to whether his evidence should be accepted but it is also relevant to the reliability of the medical evidence because the opinions of the doctors are essentially dependent on the credibility and reliability of the history given to them by the plaintiff.

355     Accordingly, in this case what appears on its face to be a medico-legal opinion supportive of the plaintiff’s claim must be looked at in the light of my views as to the plaintiff’s credit.

356     Whilst Mr Schofield initially agreed in cross examination that an accurate history was important in assessing the plaintiff’s condition and the relative importance of various events, he was not prepared to make any concessions in cross examination when it was put to him the plaintiff had not complained of constant back pain since the incident and he had in fact undertaken a number of quite heavy jobs in that time.

357     Further, in his initial 2011 report whilst finding the CT scan pointed to injury at the L4-5 disc, Mr Schofield thought that recovered; however, the plaintiff continued to have ongoing pains.  His view as to the presence of a prolapse on the 2000 CT scan is somewhat confusing, having appeared at one time in his viva voce evidence to have suggested there was a small prolapse shown in 2000, and in answer to my question, no prolapse being shown.

358     In cross examination, Mr Schofield confirmed he thought the L4-5 disc had recovered following the incident.

359     In his report, Mr Schofield also noted there was a further aggravation in 2004, and other physical tasks at work in 2007 and 2008 caused more severe back pain and evidence of a disc prolapse had now been reported.

360     In his second report, Mr Schofield, however, took a different approach, stating that the plaintiff never fully recovered from the incident injury resulting in weakness of the posterior annulus and an increased risk of further recurrence of prolapse which did occur.

361     Mr Schofield reached this view having been provided with reports from Dr Pathak and the Hospital detailing the plaintiff’s condition in the two months after the incident and not thereafter.

362     Mr Schofield elaborated on this view in cross examination, basing his opinion on an acceptance that the plaintiff had persisting pain since the incident, and never fully recovering from that injury and ignoring the effect that relatively heavy employment thereafter had on the plaintiff’s present condition.

363     No other examiner has expressed the view that the vulnerability from the incident was such that it has resulted in the plaintiff’s present condition.  This is not the least bit surprising given the history they received from the plaintiff of complete resolution of his symptoms shortly after the incident. 

364     Whilst Ms McKenzie’s comment in 2004 that the injury suffered at Marsden that year was an aggravation of a pre existing back condition, she noted the plaintiff told her that until the 2004 injury, the pain from the incident had completely resolved.

365     As Mr Schofield based his view on what I have found to be an inaccurate history, I do not accept the defendant’s failure to rely on the report of Mr Battlay, who examined the plaintiff in 2008, creates a situation in which I should more readily rely on Mr Schofield’s opinion, as counsel for the plaintiff submitted.

366     Taking into account all the evidence, whilst I am satisfied the consequences of the impairment to the plaintiff’s back are serious, I am not satisfied that such consequences are attributable to the incident.

367     Accordingly, the plaintiff’s application is dismissed. 

- - -