Fiorenza v Mauro Brothers Pty Ltd and VWA
[2009] VCC 103
•25 February 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
Case No. CI-08-01285
| SILVANO PAUL FIORENZA | Plaintiff |
| v | |
| MAURO BROTHERS PTY LTD | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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| JUDGE: | HIS HONOUR JUDGE MISSO |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 17 and 18 February 2009 |
| DATE OF JUDGMENT: | 25 February 2009 |
| CASE MAY BE CITED AS: | Fiorenza v Mauro Brothers Pty Ltd & VWA |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 0103 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – whether the pain and suffering consequences were at least very considerable – whether the plaintiff's return to full-time employment weighed against a finding of serious injury for pain and suffering – Sumbul v Melbourne All Toya Wreckers Pty Ltd [2006] VSCA 292; Dwyer v Calco Timbers Pty Ltd (No.2) [2008] VSCA 260: section 134AB(38)(c)
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Mighell SC with | Ellis Palmos |
| Mr M Stiffe | ||
| For the Defendants | Mr J Batten | Wisewoulds |
| HIS HONOUR: |
1 Before the Court is an application brought by Originating Motion filed on 3 April 2008 by which the plaintiff applies for leave, pursuant to section 134AB (16)(b) of the Accident Compensation Act 1985 (“the Act”), to bring proceedings to recover damages for injuries suffered by him arising out of the course of his employment with the first defendant from 1 July 2001 up to and including 7 February 2002.
2 The plaintiff seeks leave to bring such proceedings for pain and suffering.
3 Mr J Mighell SC appeared with Mr M Stiffe of Counsel for the plaintiff, and Mr J Batten of Counsel appeared for the defendant.
4 The body function which the plaintiff says has been lost or impaired is the lower back. The only issue which I have been asked to consider is whether the impairment of the function of the plaintiff's lower back is at least very considerable when the relevant comparison is made as described below in my discussion of the statutory scheme.
5 The following evidence was adduced during the hearing:
• The plaintiff tendered his Court Book ("PCB") pages 7 to 61: Exhibit A • The defendants tendered a video film taken of the plaintiff on 21 June 2008 and 13 July 2008: Exhibit 1 • The defendants tendered video film taken of the plaintiff on 13 and 14 February 2009: Exhibit 2 • The defendants tendered their Court Book ("DCB") pages 2 to 20: Exhibit 3. 6 The application is brought under the definition of “serious injury” contained in subsection (37)(a) of the Act which requires the plaintiff to prove that he has suffered a “permanent serious impairment or loss of a body function”.
The Statutory Scheme
7 The relevant considerations which apply to such an application are as follows:
(a)
The plaintiff must prove that he has suffered a compensable injury, that is, an injury which he suffered arising out of the course of his employment on or after 20 October 1999.[1]
(b)
The injury and the impairment must be permanent, that is, permanent in the sense that it is “likely to last for the foreseeable future”.[2]
(c)
Subsection (38)(c) provides that 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 or losses of a body function, may fairly be described as being more than “significant” or “marked”, and as being at least “very considerable”.
(d)
Subsection (38)(h) provides that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purpose of paragraph (c) of the definition of “serious injury” and not otherwise.
(e)
Subsection (38)(j) provides that the assessment of serious injury is to be made at the time of the hearing of the application.
(f)
Subsection (38)(b) provides that the consequences of an injury and impairment in terms of pain and suffering and loss of earning capacity are to be considered separately. Furthermore, if a plaintiff is successful in proving loss of earning capacity, it follows, without the necessity to determine the consequences to that plaintiff in terms of pain and suffering, that the plaintiff is entitled to leave to bring a proceeding for pain and suffering in any event;[3] an approach which I intend to follow in the present case.
(g)
In conformity with Barwon Spinners, I must identify the injury and the impairment said to be produced in consequence of the injury; whether the impairment is permanent, that is, likely to last for the foreseeable future; and whether the consequences for the plaintiff are such as to satisfy the “very considerable” test contained in subsection (38)(c). I have applied the principles set forth therein in reaching my conclusions in this application.
(h)
In an application where it is alleged that the plaintiff had a pre-existing condition which arose prior to 20 October 1999, I must, in conformity with Barwon Spinners, identify the injury and impairment arising after 20 October 1999 and I must then determine the consequences of that injury and impairment by comparing the plaintiff’s condition before and after that injury: see Petkovski v Galletti.[4]
[1] S.134AB(1), and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph 11
[2] Barwon Spinners, at paragraph 33
[3] A consistent approach of Judges of the County Court – see, for example, De Pasquale v AW Dark Pty Ltd [2005] VCC 158, per Judge Higgins; Talevski v Fulop Trading Australia Pty Ltd [2007] VCC 833, per Judge Strong, and Patterson v Burbank Plumbing and Maintenance Services [2007] VCC 1527, per Judge Ross.
[4] (1994) 1 VR 436
8 I am required by section 134AE to give detailed reasons which are as extensive and complete as the Court would give on the trial of an action, and in now doing so, to disclose my pathway of reasoning in dealing with the evidence and the issues raised by the application.
The Plaintiff's Background
9 The plaintiff was born on 8 February 1963. He is now forty-five years of age. He is a married man with two teenage sons.
10 The plaintiff completed an apprenticeship as a butcher and subsequently pursued an occupation as a butcher with a number of employers before taking up employment with the first defendant on 1 July 2002 in its retail butcher shop in Doncaster.
The Plaintiff's Injury and Medical Treatment
11 The plaintiff described the work he did with the first defendant as being heavy and repetitive and involving lifting sides of beef and lamb and engaging in a lot of other heavy lifting.
12 On 7 February 2002, his lower back became sore while working, and over the following few days it worsened.
13 The plaintiff saw Dr Freemantle, general practitioner, on 9 February 2002.[5] He examined the plaintiff, finding that he was tender over his lower back. He prescribed him anti-inflammatory medication.
[5] PCB 35-40, which is a report of Dr Freemantle encompassing his, and his colleagues, treatment of the plaintiff
14 The plaintiff next saw Dr Kunz, general practitioner, who was a colleague of Dr Freemantle, on 4 March 2003. By that stage the plaintiff had seen a physiotherapist. Dr Kunz performed some manipulation of the plaintiff’s lower back and advised him to return if there was no improvement in his condition. It would appear that at the time when Dr Kunz provided the plaintiff with manipulation, that the plaintiff was not only experiencing pain in his lower back but also in his right buttock and calf.
15 The plaintiff returned to see Dr Kunz on 18 March 2003. Dr Kunz noted that the plaintiff had experienced improvement in the pain in his lower back, right buttock and calf, but that he continued to experience pain in his right buttock.
16 Dr Kunz referred the plaintiff to have a CT scan which was taken on 20 March 2003.[6] The radiologist reported that the CT scan demonstrated a moderate right paracentral disc protrusion at L4-5.[7]
[6] PCB 21
[7] Other subsequent radiological studies referred to the disc protrusion being at L5-S1. The reference to
17 The plaintiff was treated conservatively. He was able to maintain his employment. He had some short periods off work and had limited treatment in the form of physiotherapy. He said he was getting on fairly well with occasional lower back pain and long periods when he had little trouble with his lower back.
18 He next saw Dr Freemantle on 13 April 2005 complaining of lower back pain resulting from an injury he had suffered the week before. He referred the plaintiff to have a plain x-ray which was taken on 15 April 20058 which demonstrated a transitional vertebra at the lumbosacral level and otherwise demonstrated no other abnormality.
19 The plaintiff saw Dr Freemantle on 16 April 2005 complaining that his right leg pain was worsening and that he was suffering from a migraine. He was referred to have blood tests and was provided with painkilling medication.
20 The plaintiff saw Dr Hill, a colleague of Dr Freemantle, on 30 June 2005. He referred the plaintiff to have a further CT scan which was taken on 18 April 2005.9 The radiologist reported that the CT scan demonstrated a broad- based right paracentral disc protrusion at L5-S1 with minor S1 neuro compression.
21 Dr Hill then referred the plaintiff to have an MRI scan which was taken on 28 June 2005.10 The plaintiff was still seeing a physiotherapist who suggested that the plaintiff have the MRI scan. The radiologist reported that at L5-S1 there was a moderate disc protrusion compromising the right S1 nerve root as it exited from the thecal sac within the supra-pedicular lateral recess.
22 The plaintiff was referred to Mr de la Harpe, orthopaedic surgeon. He saw Mr de la Harpe on 15 July 2005.11 He diagnosed that the plaintiff had suffered a
L4-L5 and L5-S1 references to the same level
PCB 22
PCB 23
PCB 24
PCB 41-42
disc prolapse producing sciatica and that he was a candidate to have a simple
microdiscectomy to relieve the nerve root compression.23 The plaintiff wanted a second opinion. He was referred to Mr Brazenor, neurosurgeon, whom he saw on 24 August 2005, 5 December 2005 and 13 February 2006.[12]
[12] PCB 27-30
24 Mr Brazenor advised the plaintiff to pursue a conservative course of treatment. However, in September 2005, the plaintiff telephoned Mr Brazenor and informed him that he had suffered a severe exacerbation of lower back pain and right-sided sciatica. Mr Brazenor admitted the plaintiff to Epworth Hospital on 3 October 2005, at which time an MRI scan was performed which showed an enlarged right paracentral disc protrusion at L5-S1 compressing the right S1 nerve root.[13] According to Mr Brazenor, the plaintiff improved with bed rest and was discharged to his home.
[13] PCB 25
25 When the plaintiff saw Mr Brazenor on 5 December 2005, Mr Brazenor described the plaintiff's improvement as remarkable, and that the plaintiff was walking as if there was nothing wrong with his back. The examination Mr Brazenor conducted on that occasion was normal.
26 On the last occasion the plaintiff saw Mr Brazenor, it was Mr Brazenor’s opinion that the plaintiff was still pain-free. Mr Brazenor observed that the plaintiff was not undertaking the walking exercise as advised nor had he taken off any weight, although in his oral evidence, the plaintiff said that he had shed 5 kilograms.[14]
[14] Transcript
27 Mr Brazenor was ultimately of the opinion that the plaintiff had been capable of full-time work since 6 December 2005 and that the only restriction he considered was appropriate was that the plaintiff wear a back brace at all times, that he not bend at the waist, and that he was unfit permanently for a job involving repeated bending at the waist, lifting objects from below waist level or lifting weights in excess of 15 kilograms.
28 There appeared to be some serious discord between the plaintiff, the plaintiff's wife and Mr Brazenor, as evidenced by correspondence from Mr Brazenor to Dr Hill[15] and to the plaintiff's wife.[16] The discord appears to have centred around the plaintiff's discharge from Epworth Hospital and whether he was fit to have been discharged or not and whether his condition required surgery.
[15] DCB 3
[16] DCB 4
29 Whatever the source of the discord might have been, it is really of no account in my determination of the issues raised by the plaintiff and the defendants in this application.
30 The plaintiff did not see Mr Brazenor again. He continued with treatment provided by Dr Freemantle. He also saw Dr Kaloger, general practitioner, at one stage, who provided him with heat treatment, massage, spinal mobilisation and traction.[17]
[17] PCB 44-45
31 The plaintiff was taken to Knox Hospital by his wife in mid 2008. He was helping out at a football game in which one of his sons was playing by doing the goal umpiring. In the course of doing that, he experienced increasing pain in his lower back and right leg which necessitated attendance at the hospital.[18] None of the medical evidence tendered by the plaintiff refers to that incident.
[18] Transcript 8
The Plaintiff's Subsequent Working History
32 The plaintiff admitted that he made a gradual improvement after he was discharged from Epworth Hospital. He returned to work in May 2006 on restricted duties and eventually got back to performing all of his pre-injury duties although he tried to avoid heavy lifting. He was self medicating using Nurofen Plus, which I understand is an analgesic which can be purchased from a pharmacist.
33 The plaintiff left the employment of the first defendant because the heavy work he was undertaking was stirring up his lower back injury. He obtained alternative employment with Redina Brothers through a friend. Redina Brothers conducted a wholesale and retail butchery.
34 The plaintiff left the employment of Redina Brothers in about March 2007. He said that he was experiencing pain down his right leg and had to undertake stretches to try to lessen the pain. He also experienced cramping in his right calf. He was unable to avoid doing heavy lifting.
35 The plaintiff was unemployed between March 2007 and 1 July 2007 when he opened his own retail butchery at 47 Granville Road, Rosanna. The plaintiff's business is open five a half days a week. It is common for the plaintiff to leave his home at somewhere around 6.45 am and have the shop open or be present at the shop until about 6.00 pm. He employs a young apprentice who is described as a big, strong young man, and his wife works in the shop on a limited basis to help out on Friday afternoons and Saturday mornings.[19]
[19] PCB 12-13
The Films
36 The first lot of film shown to the plaintiff was taken on 21 June 2008 and 13 July 2008.[20]
[20] Exhibit 1
37 The film taken on 21 June 2008 showed the plaintiff driving a white van to a manual car washing establishment. It showed the plaintiff, inter alia:
•
washing the outside of the van, and the inside of it through the rear door and through a side door using a hand held hose held in his right hand;
•
using a foam brush with a long handle held in both hands applying soap to the outside of the van intermittently bending slightly, applying pressure with the brush in an up and down and sometimes sideways motion;
•
entering the parcel carrying area of the van, stooping for about 10 to 15 seconds with his back bent to about 60 degrees while using the foam brush;
•
hosing inside and outside of the van using a hand held hose held in his right hand;
•
bending to nearly zero degrees to pick up a mat which was then placed in the parcel carrying area of the van; and
• hosing the outside of the van again using the hand held hose. 38 The film of 13 July 2008 was of no consequence. It showed essentially nothing.
39 The plaintiff was cross-examined after the films were shown. He admitted that he was the person shown in the films. He admitted that he washes his van in that way once per week. He said he was probably wearing a brace under the jumper he was wearing while washing the van.
40 The next film taken of the plaintiff was taken on 13 and 14 February 2009. The film of 13 February 2009 showed very little. It showed the plaintiff walking to his van holding a small satchel in his right hand.
41 The film of 14 February 2009 showed the plaintiff, inter alia:
• alighting from his van with a small satchel in his left hand; •
crouching down onto his haunches to undo a lock on the bottom of a door to his shop and then rising in one movement;
•
then working in and around his shop before opening time, opening the blinds, putting up a fly screen on the front door extending his arms fully, carrying out two small blackboards and then a larger "A" frame sign to the front of his shop, sweeping inside and outside the shop using a long- handled yard broom, bending to about 60 degrees while pouring water from a bucket onto the apron area in front of his shop, and walking in his shop.
42 The plaintiff was cross-examined after the films were shown. He admitted that he was the person shown in the films. He admitted that what he was shown doing in the films was consistent with his daily routine.
The Medical Evidence
43 Dr Freemantle diagnosed that the plaintiff was suffering from an L5-S1 disc prolapse, however, there is no up-to-date opinion from him concerning his opinion of the gravity of the injury and the plaintiff's capacity for work.
44 Mr Batten referred me to a letter written by Dr Freemantle on 13 July 2007, in which the Dr Freemantle wrote to Ms Jane Hayton of the Accident Compensation Conciliation Service describing the plaintiff, at that date, as having made a good recovery and having returned to work.[21]
[21] DCB 15(b)
45 Mr Conroy, general surgeon, examined the plaintiff on a medico-legal basis on 7 August 2007.[22] He was of the opinion that the plaintiff had an incompletely resolved lower lumbar intervertebral disc injury with referred pain into the right leg, and in that regard he was referring to an L5-S1 disc protrusion distorting the right S1 nerve root.
[22] PCB 46-48
46 Mr Conroy was of the opinion that the plaintiff would remain permanently unfit to resume full strenuous physical activity involving bending, lifting and straining, and as a result some of the duties required of a butcher. He did not consider that the plaintiff required any further treatment, but did say that the plaintiff should be regarded as vulnerable and that he might suffer temporary exacerbations of symptoms requiring him to rest, take medication, undergo exercise and possibly require physical therapy.
47 Mr Kudelka, orthopaedic surgeon, examined the plaintiff on a medico-legal basis on 3 February 2009.[23] He was of the opinion that the plaintiff had suffered a right-sided lower lumbar disc protrusion with sciatic nerve root involvement, and again he was referring to the L5-S1 disc protrusion and its involvement with the right S1 nerve.
[23] PCB 49-51
48 Mr Kudelka obtained a history from the plaintiff that he had opened his own butcher’s shop. He expressed the opinion that the plaintiff was permanently unfit to perform all of the requirements of a butcher and that he would place similar restrictions upon the plaintiff as described by Mr Conroy, and that is, that restricting his activities, wearing a brace and taking simple analgesics was appropriate.[24]
[24] DCB 50
49 Mr Kudelka was also of the opinion that surgery was not totally reliable and that the plaintiff's decision to alter his lifestyle and working conditions was a reasonable one. He then added that he agreed with Mr Brazenor that the wearing of a back brace was a reasonable alternative to surgery. Mr Brazenor did not express an opinion regarding the use of a back brace in that way, and indeed, Mr Brazenor appears to have arrived at a conclusion that the plaintiff was no longer a surgical candidate, but could work full-time with restrictions.
50 Mr Baynes, occupational physician, examined the plaintiff on a medico-legal basis on 1 May 2007.[25] He was of the opinion that the plaintiff was suffering from chronic lower back pain, right-sided pain associated with degenerative changes at L5-S1 disc with a right-sided L5-S1 disc protrusion.
[25] DCB 11-14
51 Mr Baynes was of the opinion that the pain the plaintiff was experiencing at that time in his lower back and right leg would wax and wane and that there was a possibility that he would experience flare-ups in the future and that the possibility of surgery was still on the cards.
52 Mr Baynes was of the opinion that the plaintiff could work his pre-injury hours with restrictions on lifting and that he should apply ergonomic principles to manual handling.
53 Mr Dooley, orthopaedic surgeon, examined the plaintiff on a medico legal basis on 25 June 2007[26] and on 6 August 2008.[27] He was of the opinion that the plaintiff had suffered a broad-based right paracentral disc protrusion of a degenerate lumbosacral disc with minor S1 nerve root compression, but without radiculopathy.[28]
[26] PCB 16a-16d
[27] PCB 17-19
[28] In a report dated 10 February 2009 at DCB 19a, Mr Dooley was asked to consider whether there was any sign of radiculopathy affecting the plaintiff’s right leg. He found no abnormal neurology affecting either leg
54 Mr Dooley was also of the opinion that there was a tendency for a disc prolapse of the kind suffered by the plaintiff to gradually subside and sometimes with an alleviation of all symptoms, but more commonly with persisting symptoms of a mild degree which might be aggravated by excess physical load or strain.
55 That history given to Mr Dooley by the plaintiff is wrong in a number of respects. Firstly, the plaintiff told Mr Dooley that he has two employees who are both qualified retail butchers who work full-time and do all the heavy work for him. The evidence is that the plaintiff has an apprentice, who works full- time, and the assistance of his wife, who works on Fridays and Saturdays.
56 Secondly, the plaintiff told Mr Dooley that he does the administrative and lighter work. The plaintiff does the administrative work in the butcher’s shop, but to describe the work which he performs as the lighter work is misleading. The conclusion I have reached from what the plaintiff has said in his affidavits and in his oral evidence, together with what I have seen on the films, points to the plaintiff doing all of the necessary work in the butcher’s shop, save for the heavy lifting which is either undertaken by the apprentice or undertaken by the plaintiff with the assistance of the apprentice.
57 Mr Dooley was obviously impressed with the plaintiff, describing him as genuine in his presentation and a person who he considered to be stoic and positive. However, the fact that Mr Dooley was given a very different history of the staffing of the plaintiff’s butcher shop in the work which the plaintiff actually does makes his opinion unreliable.
Serious Injury
58 Mr Batten raised a number of issues which I will deal with as they were raised by him.
59 The first issue was whether the plaintiff was claiming an injury to the disc at L4-5 or L5-S1. In opening the plaintiff's case, Mr Mighell pointed out that the first CT scan referred to L4-5 yet the subsequent CT and MRI scans referred to L5-S1.
60 It is clear enough to me that the reference to L4-5 and L5-S1 by the radiologists is a reference to the same level. Mr Brazenor was aware of all of the scans and was satisfied that they showed the same appearances.
61 If the plaintiff had suffered a disc injury to both levels, then I would have expected Mr Brazenor to have said so.
62 Furthermore, none of the scans refer to a disc injury at both levels. The scans only show one disc prolapse, which is at L5-S1.
63 On my analysis of the radiology and the way which Mr Brazenor treated all of the scans, that earlier reference to L4-5 is a reference to L5-S1, and somewhere along the way there has been an error in description. However that situation occurred, I am not persuaded that it is material.
64 The next issue was the identification of the plaintiff's injury given that the x- rays and scans show that the plaintiff had suffered degenerative changes in his lower back which probably pre-dated the period of the plaintiff's employment with the first defendant. Mr Batten relied particularly on the opinion of Mr Brazenor, who was of the opinion that the injury to the plaintiff’s lower back was cumulative, that is, over the period of his employment as a butcher.
65 It is for the plaintiff to prove that he has suffered a compensable injury.[29] The fact that the plaintiff may have suffered degenerative changes in his lower back prior to the manifestation of pain and the diagnosis of the disc prolapse is not material. The fact remains that the medical practitioners who have examined him are convinced that the plaintiff suffered an injury as a consequence of his employment with the first defendant and that the description of the injury is almost universally that of a disc injury at L5-S1 with some involvement of the S1 nerve.
[29] Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph 11, and Grech v Orica Australia Pty Ltd (2006) 14 VR 602
66 I find that the plaintiff did suffer an injury as a consequence of his work comprising a disc injury at L5-S1 with some involvement of the S1 nerve.
67 Mr Batten also referred me to section 134AB(38)(j), that the assessment of serious injury is to be made at the time the application is heard by the Court. In essence, he submitted that whilst the plaintiff may have suffered from more serious problems in the past, that is not the case now, and that the pain and suffering consequences suffered by the plaintiff fall well short of being at least very considerable.
68 Mr Batten referred me to Sumbul v Melbourne All Toya Wreckers Pty Ltd[30] and specifically to the observations of Chernov JA, that it would ordinarily be difficult to conclude that pain and suffering consequences were at least very considerable where the applicant was physically able to return to alternative employment.
[30] [2006] VSCA 292, at paragraph 24
69 As a general proposition I think that is correct, however, it is to be contrasted with Dwyer v Calco Timbers Pty Ltd (No.2)[31] in which Nettle JA observed that it would be unfortunate, and indeed wrong, if an applicant were treated less favourably than another who, being of less strength of character, simply resigned himself to his injury.
[31] [2008] VSCA 260, at paragraph 3
70 The plaintiff is now forty-five years of age. He is the sole proprietor of a butcher’s shop which he runs with an apprentice and with the assistance of his wife, who works on Fridays and Saturdays.
71 Whilst the plaintiff wears a brace every day when working, and limits the amount of heavy lifting he undertakes, he is nonetheless occupied in nearly every aspect of his business.
72 The plaintiff said that he often leaves his home at 6.45 am and leaves the shop as late as about 6.00 pm, five days per week. It occurs to me that this is a very long day during which the plaintiff is on his feet for a significant period of time except during the less busy parts of the day when he attends to the administrative work.
73 The plaintiff estimated that he might be absent from the shop between six to eight times in a year and there are occasions when he leaves at about 2.00 pm in the afternoon.
74 The plaintiff described what he actually does in his business during the day in his second affidavit. Essentially he attends to all facets of the business, but he is able to pace himself, relying on his apprentice.[32]
[32] PCB 18-20
75 The plaintiff is not having any medical treatment. Apart from using a brace, he self medicates, taking Nurofen Plus.
76 Mr Brazenor was of the opinion that the plaintiff was capable of returning to full-time work, with restrictions, from the time he provided the plaintiff with a WorkCover Certificate on 5 December 2005. The opinion of Mr Brazenor has been borne out by the fact that the plaintiff did return to full-time work as an employee and is now in self-employment. None of the other medical practitioners who have examined the plaintiff and expressed an opinion on his capacity for work cavil with the proposition that the plaintiff is capable of full- time work as a butcher so long as he works with the sort of restrictions which they consider appropriate in the circumstances.
77 A comparison between the work which the plaintiff was performing before he was injured and now demonstrates that he is essentially capable of full-time work as a butcher with restrictions. However, the advised restrictions need to be seen in the light of the plaintiff's actual capacity, that is, the work he is presently doing in self-employment.
78 The conclusion I have reached is that the plaintiff is able to do all of the work of a butcher and needs assistance where heavy lifting is involved, and it is in that setting that he calls upon his apprentice to assist him. Furthermore, I am fortified in reaching that conclusion because the film of the plaintiff washing his van showed a man who has a full, free and unrestricted use of his lower back and is able to undertake tasks of that kind in an unrestrained fashion.
79 The plaintiff was engaged in that activity from approximately 3.39 pm to about 3.54 pm, which is about 15 minutes. It is an activity which he undertakes once a week.
80 The plaintiff swore two affidavits on 20 November 2007[33] and 10 February 2009.[34] In his first affidavit, the plaintiff described that he experiences pain through his right hip into his right leg and down into his right foot, sometimes experiencing an altered sensation in his right foot and cramping in his right calf. He described no longer being able to go fishing, bike riding, being able to kick a football with his younger son, and not being able to play with his younger son who has an attention disorder.[35] His sexual relationship with his wife has been affected by the injury to his lower back. He confirmed in his second affidavit that he still experiences the same problems as described in his first affidavit.[36]
[33] PCB 7-15
[34] PCB 16-20
[35] PCB 14
[36] PCB 17-18
81 It occurs to me that while is it is clear enough that the plaintiff was suffering from a disc prolapse which interfered with the S1 nerve to some degree, resulting in right buttock and leg pain which attracted the description of sciatica, he now has a level of pain in his lower back, right buttock and leg which he is able to tolerate well.
82 Against what the plaintiff is able to do is his evidence that he is unable to do other things of a social, domestic and recreational nature as I have summarised them above.
83 In Dwyer (supra) Ashley JA made an observation which is very relevant when undertaking the exercise upon which I have embarked in making an assessment of the evidence in an overall sense to determine whether the plaintiff has suffered pain and suffering consequences which are at least very considerable:
"Finally, I agree with the submission for the respondent that in assessing whether the impairment consequences of injury are serious, one should consider not only what symptoms there are and what the worker is precluded from doing, but also what limits there are to symptoms and to inhibitions upon activities. It is true that impairment is concerned with what has been lost. But the significance of what has been lost, which bears upon the seriousness of consequences, may be informed, to an extent, by what is retained."[37]
[37] paragraph 21
84 The plaintiff has retained his capacity to work as a butcher full-time, working long hours, five and a half days per week.
85 The medical evidence points to the plaintiff having made a good recovery from the initially severe consequences of the injury to his lower back. According to Mr Dooley, the pain from which the plaintiff is suffering is mild lower back pain and right sciatic pain. Again, none of the other medical practitioners who have examined the plaintiff really cavil with that description. I do not accept that there is a possibility that the plaintiff may be a candidate for surgery. Only Mr Baynes expressed that opinion, and if it were a matter of serious consideration then the surgeons who have more recently examined the plaintiff, like Mr Conroy and Mr Kudelka, would surely have said so.
86 I should add that the medical examinations of the plaintiff are reasonably stale. The most recent opinion, aside from that of Mr Dooley, is Mr Conroy in August 2007, which is some eighteen months ago. It occurs to me that since those examinations occurred, the plaintiff has been self-employed since July 2007 and has been well able to engage in physical activity consistent with what I observed on the films.
87 Given that I have concluded from the plaintiff's evidence and from the films that he is capable of what amounts to significant physical activity, I do not entirely accept that recreations such as fishing, bike riding and kicking a football are necessarily completely lost to the plaintiff. Whilst he says he cannot engage in those activities, he does not explain why. It occurs to me that if the plaintiff is able to work, wash his van and move as freely as I saw him do in the films, that to say that he cannot undertake any fishing or bike riding or kick a football seems to me to be unlikely.
88 In the end, and after giving due consideration to the plaintiff’s evidence and the submissions made by Mr Mighell and Mr Batten, I am not convinced that the pain and suffering consequences to the plaintiff are at the least very considerable. I have reached that conclusion by considering what the plaintiff has lost and what he has retained and by making a value judgment required of me by making the relevant comparison as I have referred to it in my discussion of the statutory scheme.
Conclusion
89 On the basis of the foregoing reasons, findings and conclusions, I order that the plaintiff’s Originating Motion be dismissed.
90 After discussion with counsel, I will pronounce formal orders and will hear the parties on the question of costs.
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