Gigliotti v Victorian WorkCover Authority
[2019] VCC 1413
•6 September 2019
| IN THE COUNTY COURT OF VICTORIA AT Melbourne | Revised Not Restricted Suitable for Publication |
Serious Injury List
Case No. CI-17-05993
| DAVID GIGLIOTTI | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE BOWMAN | ||
WHERE HELD: | Melbourne | ||
DATE OF HEARING: | 21 May 2019 | ||
DATE OF JUDGMENT: | 6 September 2019 | ||
CASE MAY BE CITED AS: | Gigliotti v Victorian WorkCover Authority | ||
MEDIUM NEUTRAL CITATION: | [2019] VCC 1413 | ||
REASONS FOR JUDGMENT
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Catchwords: Accident Compensation Act 1985 – s134AB – application in respect of pain and suffering damages and loss of earning capacity – reliance upon paragraphs (a) and (c) of the definition of serious injury – injury to the low back – specific incident plus course of employment – subsequent incident upon which reliance not placed – disentanglement issues – whether statutory test satisfied – factors to be considered.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C Harrison QC with Mr B Anderson | Zaparas Lawyers |
| For the Defendant | Ms R Kaye | Hall & Wilcox |
HIS HONOUR:
(a) General background
1.This matter comes before me by way of an application pursuant to s134AB(16)(b) of the Accident Compensation Act 1985, hereinafter referred to as “the Act”. The plaintiff seeks leave to bring proceedings for damages in respect of both pain and suffering and loss of earning capacity. In so doing, he relies upon paragraph (a) of the definition of “serious injury” to be found in s134AB(37) of the Act. Initially it was indicated that there was also reliance upon paragraph (c), but this was subsequently abandoned. Reliance is placed upon the course of employment, but also upon an incident of 1 August 2011. I would refer to Transcript (hereinafter referred to as “T”) 6.
2.The physical injury relied upon is one to the low back and shall hereinafter be referred to as “the injury”. As stated, reliance is placed upon the course of the plaintiff’s employment, it being alleged that this involved heavy manual work in relation to such matters as the moving of large reams of paper. The employer at all relevant times can be treated as having been Consolidated Paper Industries Pty Ltd, hereinafter referred to as “Consolidated” (in the earlier stages of the plaintiff’s employment, his employer apparently had a different name, but nothing of significance attaches to this). Essentially the employment in which the plaintiff was engaged was that of a conversion supervisor/machine operator, which work involved the operation of a guillotine, sheeting machines, a forklift and the like. The plaintiff alleges that the work involved the lifting of heavy reams of paper, as well as bending, pushing, pulling and similar activities. The incident of 1 August 2011 involved the plaintiff bending down and lifting up of a ream of Chromocard product of an alleged weight of 20 kilograms. This shall hereinafter be referred to as “the 2011 incident”. The defendant accepted liability in relation to it and statutory benefits were paid.
3.The situation is complicated by a further workplace incident which occurred on 8 July 2016. At that time, the plaintiff was performing modified duties for Consolidated. The incident involved a near fall whilst the plaintiff was sitting on a chair. This shall hereinafter be referred to as “the 2016 incident”. The plaintiff does not rely upon this incident (see T6), while the defendant raised as an issue the disentanglement that would be required in relation to the consequences of the 2011 incident and the preceding work and those of the 2016 incident. (It should be said that no great emphasis was placed upon the general course of the plaintiff’s employment. Essentially the focus of the case was upon the two incidents.) The plaintiff claimed and was paid statutory benefits in relation to the 2016 incident. He underwent various medical examinations in this regard. The defendant accepts that the 2011 incident occurred and resulted in an absence from work by the plaintiff. However, the questions of consequences flowing from the two incidents, the disentanglement of same and the level of incapacity, including incapacity for employment resulting from each, are issues to be determined. Whether, after the disentanglement process, the statutory test has been satisfied remains a central issue.
4.Mr C Harrison QC with Mr B Anderson of counsel appeared on behalf of the plaintiff. Ms R Kaye of counsel appeared on behalf of the defendant. The plaintiff gave oral evidence, including the adoption of two affidavits as being true and correct, and was cross-examined. The balance of the evidence was documentary in nature and was tendered either by consent or without objection.
(b)The plaintiff’s background, education and employment prior to the injury
1.The plaintiff is aged 42 years, he having been born in 1977. He is a single man. He was educated to Year 12 level, during which time he did some casual work at a pizza shop. After leaving school, he engaged in various casual employments, including working as a process worker at an ice‑cream factory. He then obtained employment with an entity called Southern Cross, which converted reels of paper to sheets. Thereafter he essentially worked in the paper industry. He remained at Southern Cross as a machine operator for some eight or nine years. He then worked for Spicers Office Papers for approximately a year, doing general customer service and administrative work.
2.He then left that employer in order to work with Consolidated, commencing such employment on or about 1 September 2006. Originally he performed a mix of administrative and clerical work, doing occasional machine work as needed. This continued to be the case for approximately two or three years. He then moved to working on the floor as a conversion supervisor and machine operator. His work involved the operation of the guillotine and of sheeting machines. In addition, there was some forklift driving. Allegedly it was work that required constant bending and lifting. The plaintiff worked a 38 hour week on the afternoon shift. He was engaged in such work when, from approximately 2010, he began to experience occasional backaches when bending and lifting heavy reams of paper. He experienced a twinge of pain in the back when bending and lifting paper on the guillotine machine in approximately mid-July 2011. Subsequently, the 2011 incident occurred on 1 August.
(c) The plaintiff as a witness
1.As I pointed out during closing addresses, I have no problems with the plaintiff as a witness and, in any event, it did not appear to me that any substantial attack had been made upon his credit. I note that Dr Ali Kian Mehr, rehabilitation specialist, who has treated the plaintiff, described him as a pleasant and cooperative man. Dr Alan Gallogly, general and forensic psychiatrist, who examined the plaintiff at the request of his solicitors, described him as being cooperative. Dr George Wilson, occupational physician, who examined the plaintiff at the request of the defendant, described him as a man who appeared to be quite genuine in his presentation. Associate Professor Shashjit Varma, consultant psychiatrist, who also examined the plaintiff at the request of the defendant, described him as a person who gave a good account of his problem, was cooperative and communicative. His treating orthopaedic surgeon, Mr Peter Wilde, referred to him as being a sensible fellow who understood the issues. In summary, I am of the view that he was a reliable witness who did his best to give an accurate account of events, symptoms and consequences.
(d)The state of the plaintiff’s health prior to commencing employment with Consolidated and prior to the accident
1.Prior to commencing employment with Consolidated, the plaintiff experienced occasional aches in the lower back, but these resolved quickly. In relation to his mental health, it would appear that at some stage he had an obsessive compulsive disorder, seeking help for a short period of time. However, the problem was dealt with and the plaintiff “moved on”. In summary, I accept that the plaintiff was a fit man with no major organic or, for that matter, mental health problems prior to commencing employment with Consolidated.
(e) The injuries, their treatment and diagnoses
1.The plaintiff would not appear to have received any relevant medical treatment of any note prior to the date of the incident. On 4 August 2011, three days after the incident, he consulted Dr Ariane d’Argent of the Hallam Medical Group. Dr d’Argent has remained the plaintiff’s treating general practitioner and a considerable number of letters and reports from her were placed in evidence. When initially seen by her, the plaintiff gave an appropriate history of lower back pain that had been present for approximately three weeks and was exacerbated on 1 August 2011, when the incident occurred. On the day following the incident, the back pain commenced radiating to the right leg. X-rays and a CT scan were organised. These were conducted on 9 August 2011. The conclusion of the radiologist was that there was a broad‑based central disc herniation at L4-5, more prominent towards the right side, with the suggestion of compromising the right L5 nerve root. There was spondylosis of L5 with Grade 1 spondylolisthesis at L5 over S1. Broad-based disc bulging was also seen at that level, with a suggestion of pressure on the right and left side exiting nerve roots.
2.An MRI of the lumbar spine was performed on 27 October 2011. Whilst this showed a mild central disc prolapse at L4-5, with mild inflammatory changes seen within the left facet joint, it also revealed spondylolisthesis Grade 1 at L5-S1, causing severe osseous neural exit foraminal narrowing and broad-based disc prolapse, causing severe nerve root compromise at L5 bilaterally. There were also suspicions of an inflammatory component.
3.Dr d’Argent referred the plaintiff to Mr Peter Wilde, orthopaedic surgeon, who saw him on 22 November 2011. Mr Wilde noted, inter alia, that the plaintiff’s chronic pain had not settled, despite quality physiotherapy. He was also of the view that the physical examination confirmed the diagnosis seen on the MRI scan. Mr Wilde suggested an exit foraminal nerve root block. He anticipated that the plaintiff’s progress would be slow. A two-level decompression and fusion would be the appropriate treatment if the nerve root block and subsequent treatment were unsuccessful.
4.Mr Wilde reported to Dr d’Argent again on 3 April 2012. The plaintiff had undergone the right lumbosacral exit foraminal nerve root block on 25 November 2011. He had not benefited from the procedure. The plaintiff was continuing with core stabilising exercises and was looking at a return to work on alternative duties. Surgery was discussed. Mr Wilde commented that the plaintiff would require a two-level fusion, which was a very large undertaking, and he was not sure how well the plaintiff would do. It would not make him pain free and would not enable him to return to the type of work that he had been doing. It was thought best to avoid surgery for the time being. Mr Wilde described the plaintiff as a sensible fellow who understood the issues and was not looking for a quick fix or miracle cure. He encouraged the plaintiff to endeavour to find suitable alternative employment.
5.The plaintiff was off work for almost a year, before returning on modified duties and reduced hours. Over the next five months, he increased those hours until he was working the same number as before the 2011 incident, but continued on modified duties. These were meant to relate essentially to administrative work involving data entry, production schedules and the like. The plaintiff continued to experience ongoing lower back pain and referred leg pain and saw a soft tissue therapist for a period. In October 2012, he had been referred by Dr d’Argent to Mr Justin Hunt, orthopaedic and spinal surgeon, for a second opinion. The assessment of Mr Hunt was that the plaintiff suffered from back and leg pain with right sided foraminal stenosis at L5-S1 and with a spondylolisthesis at that level. He thought that, if the plaintiff had a sympathetic workplace and could cope, he could continue increasing his hours of work if he felt comfortable. However, he did not think that operative intervention would enable the plaintiff to return to his pre-injury duties. A two-level fusion could be considered and reassessed, with further imaging at the appropriate time. Mr Hunt added the comment, “In the meantime having time for himself and regular exercise that doesn’t aggravate his symptoms would be appropriate”.
6.The situation then becomes complicated due to the plaintiff suffering further injury and consequences resulting from the 2016 incident. As earlier stated, that incident is not a subject of this application. This was made clear at the outset – see, for example, T3. Accordingly, some discussion and analysis of the 2016 incident and its treatment is necessary.
7.In a letter of referral (to whom exactly is not clear) of 26 September 2016, Dr d’Argent stated that, in July 2016, the plaintiff had a near fall when sitting on a chair at work. He had fallen forward onto his desk and since then had been experiencing “the same pain as in 2011”. On that same day Dr d’Argent referred him for remedial massage. Certainly in late 2016 the plaintiff was receiving treatment from a physiotherapist, Ms Anju Das. The treatment that he received from her seems to have been directed to his cervical spine, lumbar spine and shoulders. It is apparent that the treatment by Ms Das continued into 2017.
8.It is also apparent that Dr d’Argent referred the plaintiff to Professor Richard Bittar, neurosurgeon and spinal surgeon. He saw the plaintiff on 7 December 2016, reporting back to Dr d’Argent on that day. Professor Bittar had taken an appropriate history, embracing both the 2011 incident and the 2016 incident. Professor Bittar suggested further x-rays, an MRI of the cervical spine and lumbar spine and a CT scan of the lumbar spine. Professor Bittar foreshadowed that he would arrange for the plaintiff to be reviewed by a rehabilitation specialist, namely Dr Ali Kian Mehr, for his opinion and for possible performance of nerve conduction studies.
9.Professor Bittar again reported back to Dr d’Argent on 3 February 2017, having reviewed the plaintiff on that day. The plaintiff was still off work due to his symptoms. Professor Bittar referred to the radiological investigations that had been carried out, including an MRI of 9 January 2017, which demonstrated spondylolisthesis at L5-S1 together with retrolisthesis at L4-5. The L4-5 disc was desiccated with associated annular tear and central disc prolapse with no stenosis. At L5-S1, there were significant bilateral foraminal stenoses pressing the L5 nerve roots. Some radiological changes at the level of the cervical spine were also noted. Professor Bittar considered that the plaintiff may have been a candidate for L5 nerve blocks and pulse radiofrequency neurotomies. I might add that it is apparent that Dr d’Argent had organised another MRI of the plaintiff’s lumbar spine which was carried out on 29 November 2016. The conclusion of the radiologist was that the plaintiff had severe bilateral neural foraminal stenosis at L5-S1, compressing the exiting L5 nerve roots. There was a bilateral chronic L5 pars defect. There was a moderate posterior central disc protrusion at L4-5, barely contacting the proximal traversing bilateral L5 nerve roots.
10.Professor Bittar reported again to Dr d’Argent on 26 May 2017, having reviewed the plaintiff on that day. He was suffering ongoing back pain and bilateral leg pain. There was discussion as to whether it would be worthwhile the plaintiff having an L5 nerve sheath injection with local anaesthetic and steroids. Other surgical options were also mentioned. Professor Bittar stated that the plaintiff was having issues with depression and the like. A reference to Dr Katherine McQuillan, psychiatrist, was mentioned.
11.Professor Bittar provided a detailed report to the solicitors for the plaintiff on 14 October 2018. The history obtained by him included that the plaintiff had not worked since July 2016. In relation to the 2016 incident, the history recounted by Professor Bittar was that, following it, the plaintiff experienced neck pain radiating to both arms, with associated upper limb and hand sensory disturbance thereafter. The diagnosis of Professor Bittar was aggravation of lumbar spondylosis and of cervical spondylosis. He considered the plaintiff’s lumbar spine condition to be substantially related to the work injury of 2011. The cervical spine condition was substantially related to the work injury of July 2016.
12.In relation to the plaintiff’s lower back condition, Professor Bittar considered the long-term prognosis to be poor. When last reviewed, the plaintiff was totally incapacitated for work, largely as a result of his lumbar spine condition. Professor Bittar considered the injury to be consistent with the stated cause. In a somewhat confusing paragraph, Professor Bittar stated that the 2016 low back injury was the dominant contributor to the plaintiff’s total incapacity. Earlier in the same report, he had stated specifically that the plaintiff’s lumbar spine condition was substantially related to the 2011 injury and the cervical spine condition substantially related to the 2016 incident.
13.A number of reports were obtained from Dr Ali Kian Mehr, rehabilitation specialist and a pain fellow. The earliest report of Dr Mehr which was placed in evidence is in the form of a letter to Dr d’Argent of 17 February 2017. Dr Mehr described the plaintiff as suffering from chronic axial lumbar spine pain radiating to the left lower limb. He suggested that treatment could commence by way of a medial branch block of the lower lumbar spine. If this was positive, radiofrequency neurotomy could be considered, along with a left L5 nerve root block.
14.A letter of 30 August 2017 to Dr d’Argent does not take matters much further, although there is a reference to a change in medication and the need for “continuous physiotherapy”. A further letter of 10 April 2018 sets out that the plaintiff had a somewhat extensive regime of medication on foot, including Targin, Naproxen, Cymbalta, Endone and Lyrica. There had been a problem in relation to funding of physiotherapy sessions.
15.On 28 July 2018, Dr Mehr provided a detailed report to the plaintiff’s solicitors. The treatment which the plaintiff had received was described, this including the L5 nerve root block in 2017 and a subsequent one performed by Dr Robert Gassin, musculoskeletal and interventional pain management specialist. The diagnosis of Dr Mehr was of chronic axial lumbar spine pain, being aggravation of spondylolisthesis and spondylosis. There was radiation of pain to both lower limbs. There was also aggravation of cervical spondylosis. A nerve conduction study had been conducted, but there was no electrodiagnostic evidence of cervical or lumbar root irritation, although such a finding does not rule out radiculopathy.
16.Dr Mehr thought that both the aggravation of lumbar spondylosis and the aggravation of cervical spondylosis were work-related. He considered the prognosis to be guarded and thought that the plaintiff had no capacity for a return to pre-injury work or any other heavy physical and manual work. His condition was stable and indefinite. Dr Mehr thought that, for the foreseeable future, the plaintiff had no capacity for any type of work, although this may change after completion of his treatment. However, overall Dr Mehr considered the plaintiff’s condition to be stable and did not think that it would change in the foreseeable future.
17.It is apparent from a letter from Dr Mehr to Dr d’Argent that, as at 7 August 2018, the plaintiff’s condition was unchanged and that he was still on a sizeable regime of medication.
18.Also placed in evidence were some notes from Dr Robert Gassin. One of these relates to a left L5 nerve sheath injection performed on 6 February 2018. The plaintiff tolerated the procedure well, although, as at that date, his response was otherwise unknown. A subsequent brief letter to Professor Bittar from Dr Gassin indicates that the plaintiff reported that, following the injection, he had approximately one day of moderate improvement in his left leg pain, but little improvement in his back pain. Pulsed radiofrequency stimulation of the left L5 dorsal root ganglion was discussed with the plaintiff. Another operation record from Dr Gassin, this one being dated 19 June 2018, refers to the plaintiff undergoing a left L5 dorsal root ganglion pulsed radiofrequency stimulation and L5 nerve sheath injection. There is no subsequent note as to the plaintiff’s response to this, but his affidavit of 3 May 2019 would indicate that his pain and restrictions have remained much the same.
19.Dr d’Argent provided a report dated 12 December 2018 to the plaintiff’s solicitors. This covered much of the history of treatment and symptoms set out above. She stated the opinion that the injuries sustained by the plaintiff in 2011 and 2016 were consistent with his current symptoms, also noting that the plaintiff denied any neck injury or pain prior to 2016. She also noted that the injury in 2016 did exacerbate the lower back, also recording that subsequently there has been a gross decrease in the plaintiff’s functional ability on a daily basis. She referred to various restrictions that are now imposed upon him.
20.The plaintiff has also been examined for medico-legal purposes. Some of the reports put before me by the plaintiff are now somewhat dated and have, at least to some extent, been overtaken by events. One which falls into that category is the report of Dr James Rowe, specialist occupational physician, who examined the plaintiff at the request of the defendant on 11 April 2012. At that stage, save for an attempt a couple of days after the initial injury, the plaintiff had not worked. He was continuing to suffer from low back pain. The referral to Mr Peter Wilde was noted, as was the plaintiff’s medication regime and his attendance at physiotherapy. The plaintiff was keen to get back to even part-time work. His current treatment and medication were reasonable and appropriate.
21.Dr Rowe diagnosed a disc derangement most likely at L4-5 affecting nerve roots on both the right and left sides and more so on the right. The condition, which was work-related, had not resolved. Alternative duties with restrictions were considered to be appropriate. Pushing, pulling, lifting and the like should be avoided. Dr Rowe thought that the plaintiff might never return to pre-injury duties and that, as the plaintiff seemed nervous and possibly depressed, some psychological counselling might be needed.
22.The plaintiff also put in evidence a report from Dr Andrew Miller, occupational health consultant, who had reported to the defendant on 18 November 2012. By this time the plaintiff was performing modified duties on a full-time basis, those duties being mainly administrative, but involving some forklift driving. Upon examination, Dr Miller found that all movements of the plaintiff’s back were restricted, as was the straight leg raising test. Dr Miller stated that the plaintiff had sustained a chronic partially incapacitating injury to his lower back. The underlying pathology appeared to be a lumbar intervertebral disc lesion and aggravation of spondylolisthesis in the lower spine. Employment was still materially contributing to the plaintiff’s ongoing partial disability. Dr Miller referred to various work restrictions, including lifting in excess of 10 kilograms, forceful pushing or pulling, prolonged sitting or standing and movements of the back beyond a comfortable range.
23.It is apparent that Dr Miller conducted a worksite inspection at the plaintiff’s place of employment on 19 November 2012. Much the same restrictions were discussed. Dr Miller formed the view that the plaintiff was currently performing duties involving data entry, checking paper reels, forklift driving and the like and that he was capable of performing those duties in a full-time capacity.
24.Dr Peter Boys, consultant orthopaedic surgeon, saw the plaintiff at the request of the defendant on 11 June 2015. His report of 19 June 2015 was also placed in evidence by the plaintiff. At this time, the plaintiff was still employed by the defendant on a full-time basis as a production supervisor. The plaintiff was finding that increased use of stairs at work was causing him back discomfort. He continued to be restricted in relation to his lifting. He described persistent central low back pain and predominant right sciatica. He was taking Nurofen Plus on a daily basis and Mersyndol Forte at night. The plaintiff was having a massage weekly or fortnightly and frequently used heat packs on his lower back. Sciatica was generally present by the end of the working day, with associated numbness involving the minor toes of the right foot. He was also in occasional discomfort of the left leg. The plaintiff had reduced tolerance in relation to sitting and standing.
25.Dr Boys diagnosed Grade 2 L5-S1 spondylolisthesis and L5-S1 spondylosis with sciatica. He considered that the plaintiff’s degenerative condition had been aggravated by work. Dr Boys suggested remedial massage so that the plaintiff could maintain his current work and domestic activities. The plaintiff should also engage in swimming or a gymnasium program. He considered that the hydrotherapy and remedial massage requested by the plaintiff was related to the work injury. The report of Dr Boys is of considerable relevance, as it is the last specialist report prior to the 2016 incident and follows an examination only some 14 months prior to that incident.
26.Dr Mohammed Awad, neurosurgeon and spinal surgeon, saw the plaintiff at the request of his solicitors on 2 March 2019. He noted that the plaintiff had been unemployed since 2016 as a result of work-related injury. He took an appropriate history in relation to the occurrence of the 2016 incident. The plaintiff described a constant neck pain being present 80-90 per cent of the time, although it was more of a background ache. The plaintiff’s constant lower back pain was at a greater level at most times (6-7/10) and was associated with poor and broken sleep, a maximum sitting time of between 10 and 15 minutes, and a maximum walking time of the same proportions. The plaintiff was also suffering from right sided sciatica and occasional sciatica on the left side. He was taking a variety of medications and having physiotherapy on a weekly basis. He also walked twice a day, received pain management every couple of months, and saw a psychiatrist every two to three months.
27.Dr Awad stated that the plaintiff’s past medical history prior to the onset of pain in 2011 was “non-contributory for any previous lumbar or cervical spine injuries and any symptoms suggestive of a pre-existing lumbar or cervical spine condition”. The diagnosis of Dr Awad was of aggravation of lumbar spondylosis and spondylolisthesis and aggravation of cervical spondylosis. He implicated employment as a dominant contributing factor. Mr Awad considered that the plaintiff did not have a physical capacity to undertake his pre-injury employment. He could undertake extremely sedentary work several hours per day, several days per week, if a suitable job was available. However, in practical terms and taking into account the plaintiff’s age, education, training, skills, work experience and the nature and severity of his spinal conditions, it would be extremely unlikely for him to be able to procure any suitable employment. If he did, it would be extremely unlikely that he would be able to carry this out in a reliable and consistent fashion. In the opinion of Dr Awad, the plaintiff’s incapacity for work was likely to be long-term.
28.Dr Awad also expressed the opinion that the plaintiff will suffer the consequences of the injury in terms of pain and disability into the foreseeable future. He considered the 2011 incident as being the significant injury which is likely to be the cause of the current lower back symptoms. He also stated that the 2016 injury significantly contributed to re-aggravating the existing injury. The 2011 injury was significant, but the plaintiff was able to return to modified duties following it. The 2016 injury rendered him unable to return to any duties at all, in addition to marking the commencement of the cervical spine injury, which added to the plaintiff’s inability to return to any form of employment.
29.Dr Awad provided a supplementary report of 20 May 2019 without seeing the plaintiff again. The plaintiff’s solicitors asked him to turn his mind to whether the 2011 incident would have, now and into the future, rendered the plaintiff incapacitated for alternative employment regardless of the 2016 incident. Dr Awad stated that the incidents in 2011 were significant contributing factors to aggravation of the lumbar spondylosis and significant contributing factors towards the plaintiff’s current inability to return to work. He considered that, given that the plaintiff was effectively performing a light duties office job in 2016, he would by now be likely to be unemployed due to his inability to return to his normal duties irrespective of the 2016 incident. The 2016 incident immediately exacerbated the process so that the plaintiff was unable to function, rendering him unemployable almost immediately. The plaintiff had shown no signs of recovery or increasing capacity, which was why he had remained on light duties up until the 2016 incident.
30.Dr Richard Sullivan, interventional pain specialist and specialist anaesthetist, saw the plaintiff at the request of his solicitors on 7 March 2019, reporting on the same day. Dr Sullivan took a detailed history, including reference to the 2016 incident in which the plaintiff had aggravation of his back and leg pain and a new onset of neck pain. However, the plaintiff reported that his worst pain was that in his back, it averaging 7/10. The pain had been aggravated during his sleep. Dr Sullivan took a history of the various activities in which the plaintiff could no longer engage, also noting that the plaintiff was receiving active treatment in relation to depression and anxiety.
31.The diagnosis of Dr Sullivan was of lumbar spondylosis consequent to the 2011 incident and cervical spondylosis either caused or aggravated by the 2016 incident. What occurred in 2011 either aggravated underlying lumbar spondylosis or caused some of the pathological change which could be identified in the lumbar imaging. He also discussed the 2016 incident which either aggravated a pre-existing condition or led to the de novo onset of the cervical condition.
32.The plaintiff had a considerable number of restrictions in relation to the low back pain, whilst the neck pain was predominantly aggravated by sitting at a desk and working on computers or keyboards. Overall, Dr Sullivan believed that the injury sustained in 2011 was more relevant in terms of the plaintiff’s current low back presentation. The 2011 injury led to the greatest degree of structural anatomical change, although the 2016 injury led to a greater impact in terms of function or capacity consequent to the chronic pain condition. The preclusions or restrictions in relation to activities as a consequence of the low back injury will continue into the foreseeable future. Due to the plaintiff’s chronic pain condition, returning to the workforce now and into the foreseeable future would be extremely difficult. The back injury suffered in 2011 is the most important in terms of relevance. The plaintiff is unlikely to return to the workforce in any role.
33.Dr Sullivan provided a supplementary report on 17 May 2019. It would not appear that he saw the plaintiff again. The purpose of this report was the answering of a specific question. Before dealing with that, Dr Sullivan pointed out an error which he had made in his original report. He had stated that, after a trial return to work following the 2011 injury, the plaintiff gradually returned to full hours and full duties. This was an error. As set out in the plaintiff’s affidavit, he returned to full hours, but on modified duties with various restrictions.
34.Dr Sullivan concluded that, on balance, if the plaintiff could have minimised the risk of aggravation of the original injury, he may have been able to continue indefinitely performing work within limitations and restrictions, although probably with intermittent aggravation of underlying low back pain. If he were to work outside of the recommendations, he would be at significant risk of aggravating the underlying condition and potentially permanently increasing his chronic pain and permanently reducing his functional and vocational capacity. In the context of undertaking exercise and/or physical activity in the workplace, his low back condition would likely have worsened irrespective of the 2016 injury.
35.The plaintiff has also undergone medico-legal examinations in respect of any psychological or psychiatric injury or condition. I shall return to that topic after summarising various reports tendered by the defendant and dealing with the plaintiff’s physical condition, although, given the plaintiff’s abandonment of reliance upon paragraph (c) of the definition, the relevance of psychological or psychiatric conditons would appear to be confined to the issue of disentanglement.
36.The defendant placed in evidence a report from Dr George Wilson, occupational health physician, who examined the plaintiff on 12 October 2016, reporting two days later. It may be that this report was specifically directed more to the 2016 incident. In any event, Dr Wilson took a history of the plaintiff first having low back pain during July 2011 when lifting reams of paper. The description of the 2016 incident recorded by Dr Wilson was of the plaintiff falling from a roller chair and further injuring his lower back.
37.Dr Wilson noted that the plaintiff presented as a man in considerable discomfort and pain and who appeared to be quite genuine in his presentation, without any pain behaviour. Dr Wilson considered that, as at the date of his examination, the plaintiff had no work capacity. His diagnosis was of a Grade II L5/S1 spondylosis with sciatica and segmental instability. He noted that this was a condition described by Mr Boys, orthopaedic surgeon, who, as mentioned earlier, had seen the plaintiff at the request of the defendant on 11 June 2015.
38.Dr Wilson was of the view that the plaintiff had a developmental underlying lumbar condition that had been aggravated at work in 2011. The plaintiff’s condition continued to be related to that initial aggravation and a further aggravation in July 2016. Dr Wilson thought that the plaintiff had no work capacity and it was unknown as to when he would even get back to alternative duties. His incapacity still related to the claimed injury.
39.Mr Gerald Moran, orthopaedic surgeon, reported to the defendant on 27 February 2017. His attention seems primarily to have been directed to the 2016 incident, although he did take a history of the 2011 incident, describing the plaintiff as having experienced a stabbing and kicking pain in his low back. In any event, Mr Moran noted that the plaintiff had low back pain which was present most of the time and that his back movements were restricted. The pain radiated into both legs. He noted that the plaintiff was also complaining of pain from his neck into the back of his left shoulder, but again this seems to be in the context of symptoms resulting from the 2016 incident.
40.The diagnosis of Mr Moran was that the plaintiff had chronic L5 pars defects of L5 and L5/S1 spondylolisthesis and with severe bilateral neural foraminal stenosis. He also had an L4/5 central disc prolapse, along with a minor disc prolapse of C4/5. Overall, Mr Moran stated that the plaintiff’s injuries resulted from his employment and that his current incapacity was materially contributed to by the claimed injury (presumably referring primarily to the 2016 incident). Various reports from radiologists to Dr d’Argent appear to have been annexed to the report of Mr Moran.
41.Mr Moran reported again to the defendant on 7 February 2018. The plaintiff was no better. He had low back pain which was present most of the time and his back movements were restricted. He had pain down both legs, with more pain in the right. He also had neck pain most of the time and restricted neck movements (it is to be remembered that Mr Moran appears to have been seeing the plaintiff essentially in respect of the 2016 incident). His diagnosis remained much the same. He thought that the plaintiff was not fit for work, having no current capacity. This was because of his medical condition and the medication which he was taking. Mr Moran anticipated that the plaintiff should have a capacity for suitable employment options within six to nine months.
42.Ms Anne Sammells, physiotherapist, examined the plaintiff at the request of the defendant on 11 December 2017. Essentially, this examination also seems to have been directed to the consequences of the 2016 incident and its treatment. It would appear that such incident also had been the subject of investigation. The purpose of the review by Ms Sammells was to consider ongoing entitlement by the plaintiff to medical and like treatment following the 2016 incident. It is apparent that the plaintiff told Ms Sammells that he had previously injured his low back in 2011 and that the 2016 incident was an aggravation of the previous injury. She was made aware that the plaintiff had time off work following the 2011 incident and had returned to modified duties not requiring any lifting and being of a supervisory nature. The diagnosis of Ms Sammells was that the plaintiff had a spondylolisthesis of L5/S1 with compression of the exiting L5 nerve roots. Whilst attributing his condition to the 2016 incident, she observed that the 2011 incident was also a contributing factor in the plaintiff’s current presentation. Essentially she recommended that he be assessed for suitability for a multidisciplinary pain management program.
43.The defendant also organised for the plaintiff to be seen by Dr Majid Rahgozar, consultant occupational physician, who reported on 14 August 2018. Dr Rahgozar took a history of the 2011 incident and of the fact that subsequently the plaintiff changed from being a “complete” factory worker on the floor to working about 70 per cent of his time in the office and 30 per cent on the floor as a supervisor. Dr Rahgozar also took a history of the 2016 incident. The plaintiff complained of a high level of pain in his lower back and lower levels of pain in his neck, left shoulder and arm. Dr Rahgozar noted that the plaintiff’s range of motion of the cervical spine and lumbosacral spine was severely restricted in all directions.
44.It was also observed that the range of motion appeared to be slightly better when observed indirectly. Whilst not ruling out some minor mechanical spinal dysfunction, Dr Rahgozar thought that the presentation was more consistent with non-specific chronic pain. Reference was made to a concurrent mental health condition, functional overlay, non-organic components and the like. There was also reference to the development of opioid dependence and other psychosocial circumstances. A multidisciplinary pain management approach was recommended.
45.Dr Rahgozar stated that, purely on the basis of musculoskeletal health, the plaintiff had the capacity to perform duties that did not require significant manual handling. Simple light or sedentary activities would be reasonable. Multidisciplinary pain management was recommended. The observation was made that the plaintiff does not have any significant pathology in the relevant areas. This seems to be a somewhat surprising finding, given the results of the radiological investigations. Dr Rahgozar thought that the plaintiff had the capacity for basic office and administrative duties and activities not requiring frequent lifting, pulling, pushing or the carrying of heavy objects. It was thought that his capacity would improve after a multidisciplinary pain management program.
46.Bearing in mind the evidence set out above, I turn, now, to my finding as to the injury to the lower back suffered by the plaintiff in the 2011 incident.
47.In this regard, it seems to me that the two treating orthopaedic surgeons, Mr Wilde and Mr Hunt, who saw the plaintiff shortly after the occurrence of the 2011 incident and before the 2016 incident, are in something of an advantageous position. Apart from the fact that they are treating surgeons, their diagnoses were made prior to there being any arguable impact or effects associated with the 2016 incident. The diagnosis of Mr Wilde was effectively what had been revealed by the MRI scan – namely a Grade 2 lumbosacral spondylolisthesis secondary to bilateral L5 pars defects, along with marked desiccation of the L4-5 disc. It was against this background that the possibility of a two-level fusion was contemplated. The diagnosis of Mr Hunt was similar – namely, back and leg pain with right-sided foraminal stenosis at L5-S1, with a spondylolisthesis at that level. Again, consideration was given to a fusion. As earlier indicated, the occurrence of the 2011 incident was not disputed. It was accepted at the outset that an incident occurred, as a result of which the plaintiff was off work for almost a year and statutory benefits were paid. In any event, I accept the diagnoses of Mr Wilde and Mr Hunt.
48.While the injury could be seen as the aggravation of lumbar spondylosis – see, for example, the opinion of Professor Bittar that the injury is the aggravation of lumbar spondylosis – I accept that the plaintiff was free from symptoms prior to commencing employment with Consolidated; that they commenced on an occasional basis in approximately 2010; and that they culminated in the 2011 incident. Given that the plaintiff was also relying upon the course of employment, I accept that he was free of relevant symptoms prior to commencement of such employment and that they commenced on an occasional basis in 2010, culminating in the 2011 incident.
49.As stated, the plaintiff abandoned reliance upon paragraph (c) of the definition. Accordingly, pursuant to s134AB(38)(h) of the Act, psychological or psychiatric consequences of the physical injury are not to be taken into account. I accept that there were and are such consequences, but these seem to me to have been more prominent and of greater consequence after the 2016 incident.
50.The reports of the treating psychiatrist, Dr McQuillan, post-date the 2016 incident. She took a history that the plaintiff reported a rapid deterioration in his mood following his re-injury in 2016. Dr Gallogly, consultant psychiatrist, saw the plaintiff at the request of his solicitors in April 2019. His distinguishing between the causative features of the plaintiff’s mental condition is a little harder to discern. He has made the observation that the plaintiff’s mental state “deteriorated in 2017 from as early as 2011 and this has persisted”. He has also made the observation that the plaintiff’s spinal injuries, and in particular his lower back injury, have significantly contributed to his psychiatric injury. The plaintiff’s lower back injury commenced in 2010 and culminated with the 2011 incident, so that it could be argued that Dr Gallogly was placing particular emphasis upon the 2011 incident. Whether that is in fact so is not entirely clear, but, in the context of his report, this is a possibility.
51.Associate Professor Varma, examining on behalf of the defendant, clearly described the plaintiff’s mental state as being a new condition, also opining that the illness arose two or three months after the injury in July 2016. The treating general practitioner, Dr d’Argent, in her report of 12 December 2018, observed that, since the incident at work in 2016, the plaintiff had been unable to return to work because of his chronic lower back and neck pain, and severe depression and anxiety. She also stated that the injuries sustained in 2011 and 2016 are consistent with the plaintiff’s current symptoms.
52.The overall impression which I have informed is that the bulk of the plaintiff’s psychological and psychiatric symptoms has arisen since the 2016 incident. Some of the consequences of this nature may be able to be traced back to the injury under consideration in this application. For example, I note that the plaintiff has sworn that he was taking Lexapro for depression in December 2011. However, on balance, it seems to me that the majority of his more severe symptoms has arisen from the 2016 incident. Any that do arise from the 2011 incident shall not be taken into account.
53.While, again, a distinction must be drawn between consequences of the 2011 incident and those of the 2016 incident, I am of the view that the relevant consequences are permanent within the meaning of the Act, in that they will persist for the foreseeable future. Dr d’Argent stated that the injuries sustained in both incidents are consistent with the plaintiff’s current symptoms and that his condition is likely to continue in the foreseeable future. Professor Bittar, while discussing and implicating both incidents, has described the plaintiff’s prognosis as poor. Dr Richard Sullivan, interventional pain specialist and specialist anaesthetist, in his report of 7 March 2019, stated that the 2011 injury was more relevant in terms of the plaintiff’s current lower back presentation and that the plaintiff’s chronic pain condition will continue into the foreseeable future. In my opinion, the plaintiff has established that the relevant consequences from which he suffers are permanent within the meaning of the Act, in that they will persist for the foreseeable future.
(f) Other developments since the injury
1.Following the 2011 incident, the plaintiff ceased work on 3 August 2011. As stated, his claim for statutory benefits was accepted and he was paid these. He was absent from employment until approximately late June 2012. He then resumed with Consolidated, initially working 6 hours per week on modified duties. Over the next 5 months, he increased the amount of work that he was performing until he was working pre-injury hours. He was performing modified duties, with a considerable amount of clerical work. He continued performing work of this nature until the occurrence of the 2016 incident on 8 July 2016. As stated, he also made a claim in respect of this, which claim was also accepted. He ceased work on 14 July 2016 and has not engaged in employment since.
(g)The legal principles applicable in relation to the two incidents situation, aspects of the evidence in that regard and the submissions of counsel
1.Apart from the fact that the plaintiff is also relying upon the course of employment, the situation is complicated by the existence of the two incidents. There is no argument but that the plaintiff suffered a workplace injury in both 2011 and 2016. He made a claim in respect of each. Each claim was accepted and he received statutory benefits as a result. However, to state the obvious, in the present case he is only relying upon the consequences of the earlier incident. Bearing this in mind, I turn now to the submissions on behalf of the parties and shall summarise them in the order in which they were given.
(i)The submission on behalf of the defendant
1.Ms Kaye, on behalf of the defendant, made very helpful submissions concerning the applicable law and, at least to a large extent, these were not challenged by Mr Harrison. Ms Kaye directed my attention to what was said in the Court of Appeal decision of Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at page 638 and 639, where it said, in essence, that there should be identification of the relevant injury, identification of the impairment arising from that injury and assessment as to whether the consequences satisfy the relevant test. It was argued by her that what is required in a case such as that presently before me is the identifying of the two injuries and the impairments flowing from them, and the determining of whether the consequences of the injury upon which reliance is placed meet the relevant threshold.
2.Ms Kaye also referred to the decision of the Court of Appeal in AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz [2012] VSCA 60. The consequences of the two injuries arising from the separate incidents cannot be accumulated and the consequences of the injury under consideration must satisfy the requirements in its own right, rather than in combination with the other injury.
3.In Filipowicz, it was the second incident of injury upon which reliance was placed. In the present case, it is the earlier. However, Ms Kaye submitted, the 2016 incident is an injury in its own right. It is an incident concerning injuries to both the lumbar spine and the cervical spine. Not only was there an acceptance of it for the purposes of statutory benefits, but a serious injury certificate, as contained in the Defendant’s Court Book, was given in respect of it. What was being sought was damages both for pain and suffering and for loss of earning capacity.
4.Further, Ms Kaye directed my attention to the decision of the Court of Appeal in Rowe v Transport Accident Commission [2017] VSCA 377. In that case, it was said that conditions, symptoms or consequences that arise later in time, and perhaps after a later trauma, may be relevant if those later conditions, symptoms or consequences can be said to result from the accident in respect of which leave was sought to commence a proceeding. I note that it was said at paragraph 86 of that decision that:
“… the Act does not permit one to look at whatever minor contribution may have been made to a condition by a particular transport accident, then ask if the total condition is serious and then determine that the injury suffered in the transport accident is itself serious because it is a cause of the total condition.”
1.It was submitted by Ms Kaye, and I accept, that the type of analysis strived for in Filipowicz must be carried out, so that the effects of the relevant incidents must be analysed, and it is not simply a matter of adding up or totalling the effects of the two incidents.
(ii)The submissions on behalf of the plaintiff
1.Essentially, Mr Harrison accepted the outline of the law advanced by Ms Kaye. This seems to me to have been a sensible approach, given that the principles involved could be described as being well-established.
(iii)My conclusion as to the applicable legal principles
1.I accept the outline of the law put forward by Ms Kaye as being helpful and accurate. The injury sustained in the 2011 incident must be identified. The impairment or consequences arising from it must be identified. It must then be determined as to whether those consequences satisfy the statutory test.
(h)The application of the legal principles to the facts in the present case and my findings as to whether the plaintiff has discharged the burden of proof
1.1. Loss of earning capacity
1.I have earlier identified the injury to the lower back suffered by the plaintiff in the 2011 incident. I turn now to the identification of the impairment which results from it.
2.I am satisfied that, following that incident and for a period of some 11 months, the plaintiff was totally incapacitated for employment. He then made a graduated return to restricted duties and remained on those until the occurrence of the 2016 incident. In other words, ultimately he was able to return to full-time work performing restricted duties that involved administrative work relating to such matters as data entry, the checking of production schedules, liaising with despatch staff, and the like. Whilst occasionally he was asked to perform factory floor or machine work, essentially he was limited to what could be described as office work.
3.At the request of the defendant, the plaintiff was examined by Dr Peter Boys, consultant orthopaedic surgeon, on 11 June 2015. Of the many reports placed in evidence, that of Dr Boys is the detailed report closest in time to the 2016 incident and prior to it. In that report, Dr Boys describes the plaintiff’s condition as follows (this is relevant both to loss of earning capacity and to pain and suffering):
“This gentleman describes persistent central lower back pain and predominant right sciatica at this time … .
This gentleman experiences central lower back pain with associated stiffness with initial mobilisation in the mornings. There is a complaint of right buttock, thigh, calf and foot pain with more prolonged activities such as standing. Sciatica is generally present by the end of a working day with associated numbness involved in the minor toes of the right foot. Mr Gigliotti is not conscious of any specific weakness of the ankle or foot. He will trip on occasions. This gentleman relates occasional discomfort also involving the left leg. Pain does extend below the knee with associated paraesthesia at times. A seated tolerance of 20-30 minutes is described. This gentleman experiences pain with static stance. A standing tolerance of 15 minutes is described. Mr Gigliotti will normally walk for periods of approximately 10 minutes … Mr Gigliotti does no heavy household cleaning at low level. He does do work at bench level experiencing some lumbar strain … His father comes over to mow his lawn … Persistent degenerative pain is described … This gentleman is coping with work at this time with pain.”
1.In her report of 12 December 2018, Dr d’Argent has set out a history of events. In describing his condition prior to the 2016 incident, she stated that the plaintiff’s condition did improve intermittently, but he never completely recovered from the back and leg pain. He did modified duties at work to compensate for his intermittent lower back pain. He had a left L5 nerve sheath injection for the radicular pain and medial branch blocks and radiofrequency neurotomies “which was helpful for only a few days”.
2.The plaintiff, himself, in his affidavit of 24 July 2017, has described how, following his return to work after the 2011 incident, he continued to struggle with pain, experiencing a flare up of lower back pain from about December 2014. He has sworn as to the administrative duties which he performed at work and as to the fact that he continued to experience ongoing lower back pain and referred leg pain. When he saw Dr d’Argent on 2 March 2015, there had been a flare-up of lower back and leg pain bilaterally for the past three months and ultimately Dr d’Argent prescribed Mobic and Mersyndol Forte.
3.In cross-examination, the plaintiff assessed the office duties that he performed as occupying approximately 70 per cent of his working time. He also agreed that the pay which he received between 2012 and 2016 was roughly comparable to the pay that he had been receiving prior to the 2011 incident. It may be that he was missing out on some overtime, but essentially he agreed that his pay had gone up between 2011 and 2016. He has been unable to work since the 2016 incident.
4.When all of the above is taken into account and the principles contained in Filipowicz and other cases applied, I find that the following is the outcome in relation to loss of earning capacity.
5.In relation to such capacity, following the 2011 incident the plaintiff was only capable of performing lighter duties. As at the date of the 2016 incident, this is what he was doing and was so doing on essentially a full-time basis. The evidence of earnings put before me shows that in fact his income had increased between 2011 and 2016. Thus, as at the date of the 2016 incident, the plaintiff was demonstrating a capacity to engage full-time in restricted duties and was not suffering a financial loss of 40 per centum or more. There is nothing in the evidence to suggest that this situation was about to change had the 2016 incident not occurred. As stated, the consequences of the 2011 incident must be viewed on their merits and not in a cumulative fashion with those of the 2016 incident.
6.When the above is done, it seems to me to be clear that the plaintiff had demonstrated the capacity to earn in excess of 60 per cent of his pre-injury average weekly earnings in suitable employment. He had done so over a period of years and by a considerable margin. There is no evidence to suggest that, had the 2016 incident not occurred, he was about to be removed from that employment. In any event, the capacity to perform suitable employment had been well and truly demonstrated prior to the occurrence of the 2016 incident. I would also point out that Professor Bittar, who has treated the plaintiff, in his most report stated that the 2011 lower back injury rendered the plaintiff permanently incapacitated for his pre‑injury duties as a machine operator. In the opinion of Professor Bittar, the plaintiff was left with residual work capacity and it is the 2016 injury that has rendered him totally and permanently incapacitated. I might add that this is a view which I prefer to that of Dr Awad to the effect that, irrespective of the 2016 incident, the plaintiff would be likely to have become unemployed. The evidence does not seem to support this.
7.However the situation is viewed, without the occurrence of the 2016 incident the plaintiff had demonstrated for some years the capacity to perform work productive of an income which exceeded the statutory requirement. There is no suggestion that this was some type of sheltered position, as opposed to productive work, and no evidence that the arrangement was to be concluded had the 2016 incident not occurred.
8.In summary, the plaintiff has failed to discharge the burden of proof in relation to loss of earning capacity.
1.2. Pain and suffering
1.Again, the test set out in Filipowicz and other cases is to be applied. However, when it is so applied, I am of the view that the plaintiff has discharged the burden of proof. I am satisfied that, leaving to one side the 2016 incident, the pain and suffering consequences of the 2011 incident are of sufficient magnitude to satisfy the statutory test. They could be fairly described as being more than significant or marked and as being at least very considerable. I would point to the following.
2.In cross-examination, the plaintiff stated that, after the 2011 incident and prior to the 2016 incident, he assisted his then partner with housework when he could, but did not do too much because of aggravation of his back. He could do sweeping, but not mopping. He was very limited in relation to vacuuming. In addition, he did not do mowing of grass, receiving assistance with such tasks and with hard rubbish and the like from his father and brother. He stated, “I really couldn’t really do much” – see T16. Between 2011 and 2016, he did not do anything major in relation to handyman work and the like. He was working long hours and had to “basically get myself right for the following week of work” – see T18. After the 2011 incident, he tried twice to resume playing golf, but suffered too much afterwards and has not played since. He used to go to the football every week, and was in fact a member of the Medallion Club at what was then Etihad Stadium, but, after the 2011 incident, he only went approximately twice. He agreed that, between 2011 and 2016, there were large gaps when he was not seeing his general practitioner and could not get away from work in order to see a psychologist or psychiatrist. He did not see a pain specialist. By early 2016, he was not seeing a neurosurgeon, although he had seen Mr Wilde and Mr Hunt at an earlier time. He was taking Nurofen and Mersyndol Forte at night if required. His mood deteriorated sharply after the 2016 incident.
3.In re-examination, the plaintiff described his weekend routine of using a spa, doing stretches, avoiding strenuous activities and the like during the period between the 2011 incident and the 2016 incident. He also gave evidence that, following his first attempt at golf during that period, he was incapacitated for two or three days and did not go to work. After the second golfing occasion, he was a bit worse and was absent for some five days. It was also put to him, and he agreed, that, in relation to his attendances upon his doctor, there were fewer visits between August 2013 and March 2015 and between August 2015 and July 2016. However, there were a considerable number of attendances apart from during those periods. In answer to a question of mine, the plaintiff stated that, before the 2011 incident, he would play golf every Saturday, as well as going to the football, although sometimes he would play on a Sunday. Certainly the impression to be gained from his evidence was that he was a very regular golfer prior to the 2011 incident.
4.Bearing in mind the above and applying the requirements of Filipowicz, I would make the following observations.
(a)As was said by Brooking JA in Palmer Tubes Mills Aust Pty Ltd v Semi [1998] 4 VR 439 at [448] as follows:
“Moreover, in ‘serious injury’ applications the credit of the applicant is of great importance …”
This observation has been referred to more recently by the Court of Appeal in Papamanos v Commonwealth Bank of Australia [2014] VSCA 167 and in Hairdar v Transport Accident Commission [2016] VSCA 182. As earlier stated, I regard the plaintiff as being an honest and reliable witness. I accept both his oral evidence and what is contained in his affidavits.
(b)Prior to the 2016 incident, the plaintiff had been a potential candidate for major back surgery. I have set out some of these matters above and would repeat them for the sake of completeness. Mr Wilde spoke in terms of a two level decompression and fusion if conservative measures were unsuccessful. In his report of 3 April 2012, Mr Wilde described such surgery as “a very large undertaking”. Mr Wilde referred to the plaintiff as being “a sensible fellow who understands the issues and is not looking for a quick fix or miracle cure”. As stated, when expressing a second opinion, Mr Hunt gave consideration to a one or two level fusion, although also expressing the opinion that operative intervention would not enable the plaintiff to return to his pre‑injury duties. Of course, it is the symptoms and consequences that are to be taken into account, but the fact that two treating orthopaedic surgeons considered the possibility of the “very large undertaking” of fusion surgery is some indication of the potential gravity of the plaintiff’s situation.
(c)In his affidavit of 3 May 2019, the plaintiff has sworn as follows:
“From 1 August 2011 onwards I had persistent back pain and pain which would radiate in to my legs … my back problems were well entrenched by the time that I had the incident on 8 July 2016 …”.
In his earlier affidavit of 24 July 2017, the plaintiff has sworn how, from about December 2014, he experienced a flare up of his lower back pain and was “struggling” with it. To Dr Peter Boys, examining on 11 June 2015 on behalf of the defendant, the plaintiff complained of central lower back pain with associated stiffness with initial immobilisation in the mornings. He complained of right buttock, thigh, calf and foot pain with more prolonged activities such as standing. Sciatica was generally present by the end of a working day. Dr Boys referred to the fact that the plaintiff had described persistent degenerative pain.
As was said in Tatiara Meat Co Pty Ltd v Kelso [2010] VSCA 12:
“The endurance of permanent daily pain requiring frequent medication, must, according to ordinary human experience, raise a real prospect of a ‘very considerable’ consequence.”
(d)When seen by Dr Boys on 11 June 2015, the plaintiff’s medication regime was the use of Nurofen Plus on a daily basis, along with Mersyndol Forte at night, along with the frequent use of heat packs. The clinical notes of Dr d’Argent show, for example, that in mid-2012 the plaintiff has been prescribed Lexapro, Endone and OxyContin. In mid-2013, he was being prescribed Endone and OxyContin, each of which being a painkiller which can be used for moderate to severe pain. As stated, in 2015 the plaintiff has been prescribed Mobic and Mersyndol Forte, each of which is prescribed for the relief of pain. The consumption of painkilling medication is also something which can be borne in mind as an indication of the level of pain being suffered.
(e)It is apparent that, prior to the 2016 incident, there had been quite substantial interference with the plaintiff’s lifestyle and everyday activities, in addition to problems in the workplace. Dr Boys had recorded in mid-2015 that the plaintiff’s seated tolerance was 20 to 30 minutes, his standing tolerance being 15 minutes and that of walking 10 minutes. He also recorded that the plaintiff did no heavy household cleaning at low level. The plaintiff experienced lumbar strain if working at bench level. He was not involved in yard duties. The plaintiff’s father came to mow his lawn. As earlier stated, prior to the 2011 incident the plaintiff effectively used to play golf every week and has only attempted to play on two occasions since the 2011 incident. Similarly, whilst he had been in something of an enthusiastic football attendee and was a member of the Medallion Club, he has only gone to the football approximately twice since 2011. He also gave evidence that, prior to 2011, he used to do a lot of gardening, house repairs, plaster work, painting and the like. That was not the situation after the 2011 incident. He gave evidence that he “pretty much” used the weekends basically to get himself right for the following week of work – see T18. In addition, the plaintiff was effectively confined to performing light and office type duties at work and could not perform work on the floor as a conversion supervisor and a machine operator.
Thus, following the 2011 incident and prior to the 2016 incident, there has been very substantial interference with the plaintiff’s lifestyle, leisure activities, domestic activities, role in the workplace and the like.
1.Bearing in mind all of the above, I find the plaintiff has discharged the burden of proof in relation to pain and suffering.
Conclusion
1.The plaintiff has failed to discharge the burden of proof in relation to loss of earning capacity and his application in that regard is dismissed. In relation to pain and suffering, he is successful and has discharged the burden of proof. Leave is given to him to bring proceedings in respect of pain and suffering damages. I shall hear the parties as to any ancillary orders that are required.
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