Genitsaris v Redflex Traffic Systems Pty Ltd
[2017] VCC 778
•23 June 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-16-02492
| GEORGE GENITSARIS | Plaintiff |
| v | |
| REDFLEX TRAFFIC SYSTEMS PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE CARMODY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 31 May 2017 | |
DATE OF JUDGMENT: | 23 June 2017 | |
CASE MAY BE CITED AS: | Genitsaris v Redflex Traffic Systems Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 778 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – physical injury – injury to the lumbar spine – pain and suffering damages – whether the injury to the lumbar spine was caused at work – whether the consequences of the injury to the plaintiff’s spine satisfy the threshold test
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Sednaoui v Amac Corrosion Protection Pty Ltd [2017] VSCA 66; Jones v Dunkel (1959) 101 CLR 298
Judgment: Application for serious injury certificate for pain and suffering damages is granted in respect of the injury to the lumbar spine.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms J M Forbes QC with Ms J Frederico | Maurice Blackburn Pty Ltd |
| For the Defendant | Mr C A Miles | Wisewould Mahony |
HIS HONOUR:
Introduction
1 This application is brought by Originating Motion dated 14 June 2016 in which the plaintiff applies for leave pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”), to bring proceedings to recover damages for injury suffered by him arising out of or in the course of his employment with the defendant on 4 March 2013.
2 The application made by the plaintiff in this case relies on a physical injury to his lumbar spine resulting from his work.
3 The plaintiff seeks leave to bring proceedings for pain and suffering damages as a result of the injury to his back.
4 The following evidence was adduced in the course of the hearing:
·The plaintiff gave evidence and was cross-examined;
·Mrs Katrina Genitsaris, the wife of the plaintiff, gave evidence and was cross-examined;
·The plaintiff tendered the following documents:
§Exhibit “A”, the Plaintiff’s Court Book (“PCB”), pages 7 to 32, inclusive, and pages 37 to 58 inclusive;
§Exhibit “B”, Bridge Street Medical Clinic entry of Dr Jack Lipp dated 13 March 2013;
·The defendant tendered the following documents:
§Exhibit 1, the Defendant’s Court Book (“DCB”), pages 1 to 31 inclusive;
§Exhibit 2, DVD surveillance film of the plaintiff for the days 7 and 8 March 2016.
5 Mr Miles QC, on behalf of the defendant, identified the issues in this application as follows:
(i)The plaintiff’s injury to his lumbar spine did not occur at his work on 4 March 2013. Causation for the impairment to the plaintiff’s spine was in issue;[1]
(ii)The plaintiff had made a good recovery after surgery to his lower back and the consequences for the plaintiff of the injury to his lower back are now not “very considerable”. The case is a “range case”.[2]
[1]Transcript (“T”) 7
[2]T7
6 In the course of the hearing, the credibility of the plaintiff was clearly an issue in this case. The dispute between the evidence of Mr Andrew Zablockyj and the plaintiff as to the plaintiff’s condition prior to attending work on 4 March 2013 were diametrically opposed.
The statutory scheme
7 The application is brought under the definition of “serious injury” contained in s134AB(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 loss of body function is to the plaintiff’s low back.
8 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 or in the course of his employment on or after 20 October 1999;[3]
[3]Section 134AB(1), and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph [11]
(b) The injury and the impairment must be permanent; that is, permanent in the sense that it is “likely to last for the foreseeable future”;[4]
[4]Barwon Spinners (supra) at paragraph [33]
(c) The plaintiff bears the burden of proof to be determined upon the balance of probabilities;
(d) Sub-section (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”;
(e) In conformity with Barwon Spinners & Ors v Podolak,[5] I must identify the injury and the impairment said to be produced in consequence of the injury; whether the impairment is permanent; that is, likely to last for the foreseeable future, and whether the consequences for the plaintiff are such as to satisfy the “very considerable” test contained in ss(38). I have applied the principles set forth therein in reaching my conclusions in this application.
[5]Supra
9 I am required to give detailed reasons which are as extensive and complete as the Court would give on the trial of an action and in doing so, to disclose my pathway of reasoning in dealing with the evidence and the issues raised by the application.
10 I have read the exhibited material and taken into account the evidence of the witnesses in this case in making this decision.
The Plaintiff’s background
11 The plaintiff was born in 1962 and is now fifty-four years of age. The plaintiff was educated in Australia and completed his Diploma of Engineering at Box Hill TAFE.[6] At the end of his education, he was a qualified technician.
[6]Plaintiff’s Court Book (“PCB”) 7
12 The plaintiff has two children from his first marriage. He currently lives with his second wife, Katrina Genitsaris, and her daughter.[7]
[7]PCB 7
13 The plaintiff has had a long and continuous work history. He has previously worked for the Victorian Police and the Victorian Government Reporting Service as a technician. He subsequently worked at Vangren Security Services as a technician. For a period of some ten years, he was a subcontractor in the role of a technician.
14 The plaintiff commenced work with the defendant, Redflex Traffic Systems Pty Ltd, in 2012. He worked as a field and technical officer. His employment involved, amongst other things, attending at red traffic light cameras and servicing them in their locations.
15 The plaintiff set out the circumstances of the injury to his lower back in his affidavit dated 1 February 2016, as follows:
“My duties involved driving to red light and speed cameras at intersections, mounting a ladder against the pole and fixing faults with the camera. The cameras and computer were housed in a box at the top of the pole. There was quite a bit of overhead reaching and awkward bending and twisting in doing this work. I found that pulling the equipment from some of the boxes could require significant force.
On 4 March 2013, I was attempting to remove a computer from a box on a pole near the corner of Punt Road and High Streets in South Yarra. I pulled the computer out of the box. As I was holding the computer and twisting to try to lower it, I experienced a twitch in my back. I managed to complete the job and drive back to the office. I was experiencing some lower back discomfort.”[8]
[8]PCB 8
16 The plaintiff submitted his Worker’s Injury Claim Form for compensation dated 28 March 2013. The plaintiff’s statement of injury was consistent with his affidavit.[9]
[9]PCB 37
17 The defendant disputed the cause of the injury to the plaintiff’s back in its Employer Injury Claim Report to the insurer.[10] The Incident Report Form completed as a result of the plaintiff’s injury has a consistent description of the event with the history given by the plaintiff as to how he was injured.[11]
[10]PCB 40
[11]PCB 41
18 The plaintiff consulted his general practitioner, Dr Uday Dixit, on 5 March 2013.[12] The plaintiff was suffering pain in his back with symptoms into his right lower leg.
[12]PCB 8, paragraph 9
19 As a result of his attendance on Dr Dixit, the plaintiff underwent a CT lumbar spine scan on 6 March 2013, which concluded as follows:
“Intervertebral and facet joint degeneration as described. Central canal narrowing at L1/2 and from L3/4 to L5/S1, most marked at L4/5. There is compression of both exiting L5 nerve roots at the L5/S1 level, but no further neural compression.”[13]
[13]PCB 19C
20 On 13 March 2013, the plaintiff attended Dr Jack Lipp at the Bridge Street Medical Clinic.[14]
[14]Exhibit B; PCB 8, paragraph 9
21 The plaintiff’s visit to Dr Lipp was at the instigation of the defendant employer. The plaintiff had an x-ray of his low back at the direction of Dr Lipp and was placed on light duties for a couple of weeks.
22 On 21 March 2013, the defendant attended Dr Jane Fitzpatrick, a sports physician. The plaintiff had been referred to Dr Fitzpatrick by his general practitioner, Dr Dixit.
23 Dr Fitzpatrick records that the plaintiff had described to her as suffering from two weeks of right leg sensation prior to attending her. The plaintiff described numbness and tingling shooting from the knee to the anterior aspect of his lower leg and to his foot. The plaintiff complained of waking at night with the pain in his low back and right leg.
24 Dr Fitzpatrick also took a history from the plaintiff that he had been taking non-steroidal anti-inflammatories for two weeks and had had soreness of his low back for one or two weeks prior to the development of the numbness to his leg.[15] The history and evidence in this case discloses that the plaintiff had suffered an injury to his low back on 25 February 2013 as a result of lifting shopping. The plaintiff attended on Dr Dixit complaining of mechanical low-back pain. Dr Dixit certified the plaintiff as unfit to attend work for two days, which was 27 and 28 February 2013. The plaintiff attended work on 1 March 2013, which was a Friday. The date of the injury to his back at work occurred on 4 March 2013, which was the following Monday.
[15]PCB 13
25 Dr Fitzpatrick ordered an MRI scan which took place on 23 March 2013. Dr Fitzpatrick reports that the MRI scan of the plaintiff’s lower back demonstrated:
“… at the L4/5 level a right posterolateral disc protrusion with inferior migration compressing the exiting right L5 nerve root. He was reported to have a small broad based disc protrusion at L5/S1 but this was not though[t] to be clinically relevant to that presentation.”[16]
[16]PCB 13-14
26 The plaintiff was then reviewed by Dr Fitzpatrick on 12 April 2013, at that time he was still suffering pain and had no significant improvement. The plaintiff then underwent a CT-guided nerve root sleeve injection on the right side at the L4-L5 level.[17]
[17]PCB 14
27 On 24 April 2013 the plaintiff was again reviewed by Dr Fitzpatrick, he was still complaining of numbness and weakness in his right leg. The pain to his lower back continued.
28 Dr Fitzpatrick referred the plaintiff to Mr David de la Harpe, an orthopaedic surgeon, for assessment.
29 The plaintiff was reviewed by Mr de la Harpe on 20 May 2013. Mr de la Harpe made the following findings at that examination:
“On examination there was weakness of 4/5 power of ankle dorsiflexion on the right and there is a positive straight leg raise. His MRI revealed a sequestrated right L4-5 disc prolapse.”[18]
[18]PCB 17
30 The plaintiff underwent surgery by Mr de la Harpe on 14 June 2013. The operation was a microdiscectomy to the plaintiff’s L4-L5 disc.
31 The plaintiff’s rehabilitation continued in the form of Keiser training and gymnasium exercises.
32 The plaintiff initially returned to work on light duties. By 3 March 2014, Mr de la Harpe had certified the plaintiff as capable of returning to work on full duties, with advice to be particularly careful in relation to lifting the ladder from the truck.[19]
[19]PCB 18
33 The plaintiff continued in that service technician role until November 2014 when his employment was terminated as a result of a company restructure.
34 The plaintiff currently works as an installation technician on a casual basis with RTR.[20] The plaintiff works three days per week and, on occasion, sometimes a fourth day. The plaintiff’s normal hours are 18 hours of work per week. On some occasions, he has worked 25 hours in a week. The plaintiff gave evidence that he found the 25-hour week difficult and the pain in his back increased significantly.[21]
[20]PCB 12D
[21]PCB 12D
35 The plaintiff’s ongoing treatment involves him taking Nurofen and Naprosyn on occasions to deal with his pain. He continues an exercise program designed by his wife, who is a personal trainer by occupation, to maintain his core strength, which assists his back pain. The plaintiff continues to teach and be involved in judo classes. The plaintiff can no longer participate in competition for judo or involve himself in the physical demonstration of judo moves due to his low-back injury.
Medical opinions
36 In this case, there was not much controversy in relation to the medical opinions in respect of the plaintiff’s injury to his low back.
37 The plaintiff relied upon the following medical opinions:
Dr Jane Fitzpatrick, sports physician
38 Dr Fitzpatrick prepared a report dated 7 March 2017 in respect of this application.[22] Dr Fitzpatrick diagnosed the plaintiff as suffering from an L4-5 disc protrusion affecting the right exiting L5 nerve root. Dr Fitzpatrick has not reviewed the plaintiff after his surgery by Mr David de la Harpe.
[22]PCB 13
Mr David E de la Harpe, orthopaedic surgeon
39 Mr de la Harpe prepared a report dated 11 June 2014 which referred to the surgery performed in respect of the plaintiff’s injury.[23] Mr de la Harpe diagnosed the plaintiff as suffering from an acute lumbar disc prolapse causing nerve root compression and sciatica. Mr de la Harpe described the treatment as a surgical decompression in the form of a microdiscectomy due to failure of his condition to progress with conservative management in respect of his low back. Mr de la Harpe’s opinion was that the plaintiff’s prognosis in general was good and he thought the plaintiff would have self-directed exercises and possibly some physiotherapy in the future.
[23]PCB 18
Professor Richard Bittar, consultant neurosurgeon
40 Professor Bittar prepared a report dated 3 February 2017.[24] Professor Bittar noted that the plaintiff’s current symptoms were as follows:
“Lower back pain. This is his main complaint. His back pain is intermittent and occurs with variable frequency, typically between two days per week and one day every two weeks. It has a maximum severity of 7/10. The duration of each episode is variable, from 12 hours to three days in length.
Right leg pain. This pain radiates to the lateral aspect of his right calf over the dorsum of his foot to his great toe. His leg pain typically occurs when he experiences back pain; however, is less frequent than his back pain.”
[24]PCB 20
41 Professor Bittar addressed the issue of causation in the following manner:
“In my opinion, the injury at work on March 4, 2013 has been the dominant contributing factor and remains a significant contributing factor to his ongoing pain, disability and requirement for treatment.”[25]
[25]PCB 22
42 Professor Bittar noted that the plaintiff was permanently incapacitated for his full pre-injury duties as a field technician. The prognosis for the plaintiff, according to Professor Bittar, is that the plaintiff’s condition –
“… is likely to remain substantially stable for the foreseeable future; however, I do note that there has been a slight deterioration in his symptoms over the past one to two years and it is possible that his deterioration could continue to the point where his level of disability and treatment requirements increase significantly. It is difficult to estimate the likelihood of this.”[26]
[26]PCB 22
43 Professor Bittar was asked to comment on whether or not the plaintiff’s injury could have occurred as a result of his judo activities as an instructor or competitor. Professor Bittar stated as follows:
“I note that he was a judo instructor for approximately 12 years prior to the accident and had been a judo competitor for years prior to that. In my opinion, the type of exercise and training that someone who undertakes judo would participate in would be highly likely to strength[en] their core muscles, and would make it less likely that they would sustain a lower back injury. Over the past 12 years of practice as a neurosurgeon, I cannot recall seeing a single patient who has injured their back whilst participating in the training or practice of Marshall Arts. I am therefore of the opinion that judo has no involvement in his current condition.”[27]
[27]PCB 23
The Defendant’s medical opinions
Mr David Ho, occupational health consultant
44 The plaintiff was initially sent for examination by Dr David Ho. Dr Ho prepared a report dated 24 July 2013. In his report, Dr Ho noted:
“From the history, I believe that Mr Genitsaris, a 51 year old field technician, had sustained a L4/5 disc extrusion in his lower back from the reported incident when removing a computer out of a camera box at work on 04 March 2013.
…
The surgery was performed six weeks ago on 14 June 2013.
The operation has been successful in relieving the symptoms in his right leg. He reportedly has increasing strength in his right foot. Currently he has residual tightness in his lower back with residual symptoms into his right leg. Clinical examination today reveals restriction of movements in his lower back with evidence of L5 nerve root radiculopathy.”[28]
[28]DCB 10
45 Dr Ho placed the plaintiff on restricted duties on a part-time basis at that stage.
46 Dr Ho conducted a worksite assessment on 24 July 2013 and made recommendations to the defendant concerning the manner of work that the plaintiff was required to perform.[29]
[29]DCB 13-16
Associate Professor Miron Goldwasser, orthopaedic surgeon
47 Professor Goldwasser examined the plaintiff on 17 March 2015 and prepared a medico-legal report dated 18 March 2015. Professor Goldwasser took a history from the plaintiff that he still suffered from intermittent pain in his lower back in the central area which is worse if he was required to lift. The plaintiff also complained of a numbness and tingling effect in the outer side of his right calf, extending to the dorsum of his foot and big toe. This symptom is constant.[30]
[30]DCB 19
48 Professor Goldwasser noted that the plaintiff did not take any prescription medications but takes over-the-counter medications of Panadol, about ten times a month, as necessary.[31]
[31]DCB 19
49 Professor Goldwasser examined the plaintiff and noted that there was moderate restriction of back movements including extension and flexion, and mild restriction of lateral flexion to each side. Thoracolumbar rotation was satisfactory. He noted that the plaintiff suffered from decreased sensation to light touch and pinprick on the lateral aspect of the right calf and dorsum of the foot, extending to the big toe, consistent with the L5 dermatome. There was a slight weakness of the big toe extension but otherwise muscle power in the lower limb appeared satisfactory.[32]
[32]DCB 21
50 Professor Goldwasser’s opinion was that the plaintiff suffered an injury to his lower back consistent with his activities at work on 4 March 2014. Professor Goldwasser stated:
“… He probably aggravated degenerative changes in his lumbar spine, with the development of a right L4/5 disc prolapse causing radiculopathy.”[33]
[33]DCB 22
Mr Ian R Jones, orthopaedic surgeon
51 The plaintiff was examined by Mr Jones on 27 April 2017 for the purposes of this application. Mr Jones prepared a report dated 27 April 2017.
52 Mr Jones took a history from the plaintiff as follows:
“Current Complaints
Back
The patient reports symptoms of constant low back pain which is said to be worse in the winter months, compared with the summer. In the right leg the patient described symptoms of constant numbness affecting the skin on the outer aspect of the right calf and dorsum of his right foot. The patient described some slight weakness involving the extensor tendon of his right great toe.”[34]
[34]DCB 29
53 Mr Jones noted that the plaintiff currently took Nurofen tablets, as required, for back pain. He noted that the plaintiff took two tablets every one to two weeks. He also noted that the plaintiff attended for massage to his back every two weeks.[35] Mr Jones’ opinion was:
“The prognosis for this patient’s back condition is one of varying degrees of lumbar back pain and stiffness with persisting paraesthesia symptoms involving the right leg. It is possible that simply with the passage of time that in the longer term there may be a progressive deterioration in this patient’s level of symptoms and function, consequent on the long term effects of the disc disruption requiring surgery.”[36]
[35]DCB 30
[36]DCB 31
54 The medical opinions tendered in this application are in agreement that the plaintiff has had back surgery as a result of his injury at work on 4 March 2013. The plaintiff’s current position is that he continues to have low-back pain and takes minimal medication in the form of Nurofen or Panadol to alleviate back pain on occasions. He continues to have numbness or tingling in his right leg and the medical practitioners accept that is the case.
The evidence of Mr Andrew Zablockyj
55 The defendant called evidence from Mr Zablockyj, who was the human resources manager of the defendant company at the time of the plaintiff’s employment. Mr Zablockyj’s evidence was in the form of an affidavit dated 19 September 2016. The affidavit contained an exhibit which was a note dated 4 March 2013 at 8.15am which was made by Mr Zablockyj. In paragraph 4 of his affidavit, Mr Zablockyj stated:
“”What is not mentioned in the applicant’s affidavit is a possible alternative cause of the applicant’s injury which was the subject of a conversation the applicant had with me on the morning of that same day, 4 March 2013.”[37]
[37]DCB 2
56 Mr Zablockyj then made a note of his conversation and observations of the plaintiff. The note was an exhibit to the affidavit and read as follows:
“FILE NOTE:- 4/3/13, 8.15AM
RE:- GEORGE GENITSARIS
GEORGE ARRIVED IN ROSS ST AND PARKED HIS CAR.
HE GOT OUT VERY SLOWLY + APPEARED TO BE IN PAIN WITH HIS BACK.
I ASKED HIM HOW HE WAS AND HE SAID THAT HE HAD BEEN BEATEN UP.
I EXPRESSED SHOCK, THEN GEORGE EXPLAINED THAT SOME BIG GUYS ARRIVED AT JUDO TRAINING AND HE HAD A HEAVY WORKOUT.
HE WALKED ACROSS THE ROAD VERY SLOWLY AND IN PAIN.”[38]
[38]DCB 4
57 Mr Zablockyj gave evidence and was cross-examined in this hearing. He stated he made the file note because he was concerned for “George” (the plaintiff), in the sense that he seemed very, very disabled and in pain.[39] Mr Zablockyj stated that he told the plaintiff’s supervisor shortly after that, that he did not think George should be going out in the field.[40] Mr Zablockyj did not include the conversation with the supervisor in his exhibited note.
[39]T49
[40]T49
58 Mr Zablockyj was definite, resolute and adamant that on 4 March 2013, he made the observations of the plaintiff in pain and was told by the plaintiff he was beaten up at judo. Mr Zablockyj retired from his employment in 2014. He gave evidence that he was asked to recall these events when approached to make a statement in April of 2016.[41]
[41]T50
59 Mr Zablockyj’s memory about other matters around the plaintiff’s employment was vague or non-existent. These matters included:
(i) No memory of the plaintiff’s complaint about unfair treatment by the line manager “Simon”;[42]
[42]T51
(ii) No memory of being advised by the plaintiff that “Simon” was alleging the back injury happened at judo;[43]
[43]T52
(iii) He could not recall if he gave the exhibited note to the occupational health and safety manager, Anthony Cassar;[44]
[44]T53
(iv) He could not recall being in a meeting with Anthony Cassar in March 2013 discussing payment of medical bills to the plaintiff;[45]
(v) He had no recollection of seeing the plaintiff attend work in the week prior to the observation and conversation with the plaintiff on 4 March 2013.
[45]T55
60 The plaintiff has given evidence that on the day of 4 March 2013, he did not park in the street as alleged by Mr Zablockyj. The plaintiff gave evidence he parked under the building at work prior to going out to perform his maintenance duties on the road.
61 The plaintiff denies any conversation occurred with Mr Zablockyj on 4 March 2013.
62 The evidence of the plaintiff and Mr Zablockyj is in conflict. This conflict in evidence raises the following matters:
(i) The credibility of the plaintiff;
(ii) The credibility of Mr Zablockyj;
(iii) The cause of the injury to the plaintiff’s back.
63 I have dealt with the plaintiff’s credibility in these Reasons for Judgment. In order to make a proper and considered assessment of the credibility of Mr Zablockyj, it would be necessary to have evidence from the line manager to whom Mr Zablockyj spoke on 4 March 2013. Further, it would be necessary to hear evidence of:
(i) Mr Zablockyj’s attendance at meetings with Mr Cassar and “Simon”;
(ii) Any other relevant employees of the defendant relating to the payment of medical expenses for the plaintiff.
64 Evidence of the above matters would allow for proper consideration and assessment of Mr Zablockyj’s credibility. No such evidence was called in this hearing. For these reasons, I have been unable to form a reasoned and considered assessment of the credibility of Mr Zablockyj.
65 Nevertheless, even if the Court accepted the evidence of Mr Zablockyj that the plaintiff said he was beaten up at judo prior to working on 4 March 2013, such evidence does no more than raise “a possible alternative cause” of the plaintiff’s injury to his back. Such evidence does not preclude a finding that the plaintiff injured his back in the manner he has described in his affidavit and in his evidence before this Court.
66 The issues raised by Mr Zablockyj’s evidence are more appropriately explored, tested and determined in the course of a trial of the matter rather than an interlocutory application such as this proceeding.
The credibility of the Plaintiff
67 The credibility of the plaintiff has been put in issue by the defendant in this proceeding. The defendant relies on three principal areas of the evidence to challenge the plaintiff’s credibility:
(1) The DVD surveillance of the Plaintiff
68 In the course of the hearing, approximately 8 minutes of video surveillance film was shown of the plaintiff. The defendant conceded that it had conducted surveillance on nine separate days for a total of 33 hours of surveillance.
69 The surveillance shown for 7 June 2016 was at the plaintiff’s judo class. The footage was filmed through a doorway and displayed limited vision of the plaintiff’s activities. At its highest for the defendant, it showed the plaintiff doing back rolls on one occasion for a short period. On another occasion, it showed the plaintiff on his knees holding a tube whilst his very young students practiced rolls over the tube. The plaintiff has, in his affidavit and histories to doctors, said he conducts judo classes. This surveillance film does not form a basis for challenging the plaintiff’s credibility.
70 The second day of filming was 8 March 2016. This film shows the plaintiff attending at a supermarket and going about his shopping activities in a normal manner. The movements and activities of the plaintiff shown on this film do not conflict with his stated abilities and activities to doctors and in his evidence at Court.
71 The surveillance material in this case does not form a proper basis for a challenge or attack on the plaintiff’s credibility. Indeed, the activities on the film confirm what the plaintiff says he is able to do despite the injury to his back.
(2)The history to doctors is in conflict with the Plaintiff’s history of back injury
72 The defendant relies upon the history given by the plaintiff to Dr Jane Fitzpatrick, sports physician, on 21 March 2013. Dr Fitzpatrick recorded the following:
“… He has been taking non-steroid anti-inflammatories for two weeks and had had soreness in his lower back for one or two weeks prior to the development of the numbness.”[46]
[46]PCB 13
73 The defendant also relies upon the notation made on the Capital Radiology report dated 6 March 2013, which states as follows:
“Clinical Notes:
2 weeks of low back pain right L5. ?disc.”[47]
[47]PCB 19B
74 The relevant chronology of injury and attendance on the medical practitioners is as follows:
Date Attendance 26 February 2013 The plaintiff attends his general practitioner, Dr Dixit, complaining of mechanical low-back pain. 27 and 28 February 2013 The plaintiff is certified unfit for work and has days off work. 1 March 2013 The plaintiff goes to work. 4 March 2013 The plaintiff injures his back at work removing a computer at the red traffic lights. 5 March 2013 The plaintiff re-attends his general practitioner, Dr Dixit. 6 March 2013 A CT scan of the plaintiff’s lumbar spine.[48] 13 March 2013 The plaintiff attends Dr Jack Lipp at the Bridge Street Medical Clinic.[49] 21 March 2013 The plaintiff attends Dr Jane Fitzpatrick. [48]PCB 19B
[49]Exhibit B
75 The defendant’s submission is that on the history of Dr Jane Fitzpatrick, the commencement date for the severe symptoms to the plaintiff’s back occurred on or about 26 February 2013. The clinical note entry of “2 weeks of low back pain” in the CT scan report dated 6 March 2013 indicates the symptoms complained about by the plaintiff date back to 26 February 2013 not the alleged date of injury at work, which is 4 March 2013.
76 I accept the plaintiff had symptoms in his low back on 26 February 2013. He was given two days off work by Dr Dixit. I accept the plaintiff attended his work on Friday, 1 March 2013. There is no evidence of any issues or complaints about the plaintiff’s back pain or mobility for that day. I accept the plaintiff’s evidence that he did not engage in any judo related activities over the weekend of 2 and 3 March 2013. The histories of Dr Jane Fitzpatrick and the radiologist are consistent with the plaintiff’s version of the back complaints and symptoms, including his work injury on 4 March 2013. In Dr Lipp’s notes, he records the injury date as 11 March 2013. It is one week after the actual reported date of injury at work. The history taken by Dr Lipp about the mechanism of injury is consistent with the plaintiff’s version of the work injury to all medical practitioners. Further, the history given to Dr Lipp: “next morning awoke with no back pain but paraesthesia right outer calf and foot”[50] is consistent with Dr Dixit’s history for the 5 March 2013 attendance by the plaintiff.
[50]Exhibit B
77 I do not accept the differences in the histories to Dr Fitzpatrick and the radiologist relied upon by the defendant are a proper basis to discount or diminish the credibility of the plaintiff. The plaintiff did have back pain around 26 February 2013 but had returned to work and suffered far more serious symptoms after his work injury on 4 March 2013. The plaintiff has received appropriate medical treatment since that day.
(3) The evidence of Mr Zablockyj
78 Mr Zablockyj gave evidence that the plaintiff was very disabled and in pain when he arrived at work on 4 March 2013. Mr Zablockyj asked the plaintiff what was the problem and the plaintiff told him he was beaten up in a judo session.[51]
[51]DCB 2
79 The plaintiff denies the conversation occurred between himself and Mr Zablockyj prior to commencing work on 4 March 2013. The plaintiff denies being involved in any judo activities on the weekend prior to attending work on 4 March 2013. The plaintiff gave evidence that he came to work on 4 March 2013 and parked his vehicle under the building and then went out onto the road after reporting for work.
80 Mr Zablockyj gave evidence that he told the plaintiff’s line manager, “Simon”, that he was of the opinion the plaintiff should not do his normal duties. This conversation was after Mr Zablockyj’s observations of the plaintiff on 4 March 2013 and before the plaintiff went out on the road for his normal duties. If the conversation occurred between Mr Zablockyj and “Simon” as alleged, it is improbable that the plaintiff was allowed to leave the premises and go about his normal duties. I do not accept the line manager (“Simon”) would ignore or contradict an instruction from a human resources manager of the defendant company (Mr Zablockyj) on such an obvious occupational health and safety matter.
81 In terms of assessing the plaintiff’s credibility as an honest and accurate witness in comparison to Mr Zablockyj’s evidence, it is a word on word comparison between them. Without more evidence from the defendant’s employee, “Simon” about the warning from Mr Zablockyi, or his own observations of the plaintiff prior to going out on the road on 4 March 2013, I am unable to make a positive finding that the plaintiff is lying or mistaken about the events on 4 March 2013 prior to his injury at work.
82 I have had the advantage of observing and hearing the plaintiff give evidence in this proceeding. The plaintiff made reasonable and proper concessions in the course of his evidence. The plaintiff did not exaggerate his symptoms and difficulties. I assessed the plaintiff to be stoical in his disposition. I accept that he has given honest and accurate evidence to the best of his ability.
(4) Admission by the Defendant
83 The plaintiff relies on two letters from Gallagher Bassett, the workers’ compensation insurer for the defendant. The plaintiff submits that the two letters are admissions by the defendant that the injury to the plaintiff’s back was caused in the course of his employment.
84 The first letter, dated 29 May 2013, is to the orthopaedic surgeon, Mr de la Harpe, stating the insurer will pay for the plaintiff’s surgery to his back.[52]
[52]PCB 53
85 The second letter, dated 23 March 2015, is addressed to the plaintiff advising him of the impairment benefit liability assessment and entitlement. The letter states:
“Liability is accepted for the lumbar spine.”[53]
[53]PCB 55
86 The plaintiff relied on these letters as admissions on behalf of the defendant that the injury to the plaintiff’s low back was suffered in the course of his employment with the defendant.
87 Both of these letters were after the employer-defendant had completed its Injury Claim Form on 28 March 2013.[54] In that Claim Form, the employer disputed the cause of the action being work related.[55] The two letters referred to, and the allegation raised in the Claim Form, cannot be reconciled. The failure by the defendant to call evidence to explain the contradiction between its submissions that the injury was not caused by the plaintiff’s employment and the contents of the two letters does not mandate a conclusion favourable to the plaintiff in this case.[56]
[54]PCB 39-40
[55]PCB 40
[56] Sednaoui v Amac Corrosion Protection Pty Ltd [2017] VSCA 66
88 In the circumstances of this case, I accept that the admissions outlined in the letters is some evidence with probative value in favour of the plaintiff’s case that the injury to his low back was caused in the course of his employment with the defendant on 4 March 2013.
89 For the sake of completeness, I find that the failure by the defendant to call a witness to explain the letters from the defendant’s WorkCover insurer raises the issue of the rule in Jones v Dunkel.[57]
[57](1959) 101 CLR 298
90 The rule in Jones v Dunkel is that if the party has failed to call a witness that ordinarily would be expected to be called to give evidence, then an inference is drawn against that party that the evidence from the missing witness would not have assisted the case of the party that failed to call the evidence. The rule does not extend to draw an inference that a fact which is adverse to the interests of the party is proven.
The consequences of the injury to the Plaintiff
91 The plaintiff relies upon his affidavits dated 1 February 2016 and 30 May 2017, together with his evidence in this application to prove the consequences of the low-back injury.
Sleep
92 The plaintiff stated that his sleep is regularly disturbed because of pain and soreness. He stated that he wakes up several times each night.[58]
[58]PCB 11, paragraph 35
93 In his later affidavit, the plaintiff stated that his sleep is still disturbed by back pain. He went on to state that he wakes every few hours at night because of the discomfort and back pain.[59] The plaintiff has consistently given a history to doctors that his sleep has been disturbed as a result of his back pain and in particular, he stated to Dr Fitzpatrick that he was woken at night as a result of pain in his lower back and right leg.[60]
[59]PCB 12C, paragraph 14
[60]PCB 13
94 I accept that the plaintiff’s sleep is disturbed as a result of the pain in his low back, and his right leg symptoms.
95 It is some four years since the plaintiff’s injury and I accept that he will continue to suffer from interrupted sleep due to his back pain. I accept it is a matter of great significance to a person to be denied, seemingly for the rest of his life, the ability to enjoy uninterrupted sleep. I accept that the inability of the plaintiff to have regular sleep will result in a very considerable diminution of his enjoyment of life and his ability to enjoy activities of daily living. The impact on the plaintiff’s sleep as a result of his low-back injury is a very considerable consequence for him.
Pain
96 The plaintiff sets out in his affidavits and in his evidence that he continues to experience back pain. He states that the pain limits his movement and flexibility. The medical practitioners have found the limitation of movement to his back as a result of pain in their examinations. The plaintiff’s evidence is that he continues to experience ongoing pain in his low back and also continues to experience numbness and altered sensation from his right knee down to his right foot.[61]
[61]PCB 10, paragraph 32
97 In his later affidavit, the plaintiff states that he has constant back pain and he is never free of it. The plaintiff describes the current pain as fluctuating.[62]
[62]PCB 12C, paragraphs 10 and 11
98 Whilst I have previously described the plaintiff as stoical in disposition, I accept that he suffers from constant pain in his lower back which fluctuates in its level of severity from time to time. I accept that the plaintiff will suffer pain for the foreseeable future and that this consequence can only be properly described as “more than very considerable”.
Medication
99 The plaintiff gave evidence that he was someone who tried not to take medication. His evidence is that on occasion he takes Nurofen or Naprosyn to moderate the pain levels.[63]
[63]PCB 12C, paragraph 9
100 I accept that the plaintiff regularly takes pain-relieving medication of the over-the-counter variety but do not find that this is a very considerable consequence for him.
Activities of daily living
101 The plaintiff gave evidence that he can continue to do and perform all the household duties required of him. The main difference as a result of his back injury is that he now has to take his time and do those chores and activities slowly.[64] I accept that the plaintiff is able to manage his activities of daily living by performing them at a slower and more careful pace. The plaintiff manages his physical disability to his lower back by performing gymnasium exercises and massage to his back on a reasonably regular basis. He continues to take over-the-counter medication in order to maintain his activities of daily living.[65]
[64]PCB 11, paragraph 39
[65]DCB 30 and PCB 12B, paragraph 7
Employment
102 I accept that the plaintiff is now unable to return to his pre-injury employment. The evidence is that for the period between March 2014 until November 2014 when the plaintiff was retrenched, that he resumed his normal pre-injury employment. The reality is that he was assisted by a fellow worker in that work. I accept the plaintiff’s evidence that he is now limited to three, perhaps four days per week of casual subcontracting work as a technician. The impact on his employment is for the foreseeable future. Whilst the plaintiff is not claiming or seeking a certificate for loss of earning capacity, I find that his inability to perform full-time paid employment as a result of his low-back injury is a very considerable consequence for him.
Sport
103 The plaintiff is a judo instructor and a black belt in judo. As a result of the low-back injury received in March 2013, the plaintiff has been unable to engage in judo competitions or actively instruct and participate in his coaching role as a judo teacher.[66] I accept that whilst the plaintiff continues to derive considerable enjoyment from his role as a judo teacher, the fact that he is unable to actively involve himself in the senior classes and compete in judo tournaments is a very considerable consequence for him.
[66]PCB 11
104 Whilst the plaintiff has been able to resume moderated employment and activities in judo teaching, it is because of his stoical disposition that he has been prepared to put up with and withstand pain and suffering and make the best of his situation. The plaintiff ought not to be treated less favourably than another person with the same injury who, with less strength of character, simply resigns themselves to invalidity as a result of an injury.
Conclusion
105 I accept the plaintiff as a witness of truth and reliability. I accept that when taking into account all the consequences as set out in these Reasons that have impacted upon the plaintiff as a result of the injury to his lower back, they are “more than significant or marked” and are properly described as “at least very considerable”. The plaintiff has satisfied the statutory test for serious injury certification in respect of pain and suffering damages.
106 On the basis of the foregoing reasons, I grant the plaintiff leave to bring proceedings for common law damages for pain and suffering as a result of the injury he received in the course of his employment with the defendant on 4 March 2013.
107 I will hear the parties on costs.
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